Sem 2 FOUNDATION PAPER III - JUDICIAL PROCESS (4 Credits)

Module – I (1 Credit) 1. Nature of Judicial process:

Judicial process as an instrument of social order Judicial process and creativity in law –common law
model – Legal Reasoning and growth of law – change and stability. The tools and techniques of judicial
creativity and precedent. Legal development and creativity through legal reasoning under statutory
and codified systems.

1. Discuss in detail the Nature & Scope of Judicial Process as an

instrument of Social Ordering in India? 04/14,05/16,10/16, Or
Judicial Process is a vital instrument for social ordering? Explain
09/13,24-38 Or What is the notion of ‘Judicial Process’? How far it
serves an instrument of social ordering in India? 05/18, Or
What do you understand by the term Judicial Process in the
pursuit of on Constitutional Goal & Values? Explain with
Examples and Cases? 03/12
Nature of Judicial Process 1
Judicial Process in pursuit of Constitutional goals and values 2 38-47

The judicial process refers to the system and procedures through which
disputes are resolved and justice is administered by the courts. In India, the
judicial process plays a crucial role in ensuring social ordering and upholding
the rule of law. It serves as a mechanism for enforcing constitutional goals and
values, safeguarding individual rights, and maintaining social harmony.

The nature and scope of the judicial process in India can be

understood by examining its various dimensions:

1. Adjudication of disputes: The primary function of the judicial process is the

resolution of disputes. Individuals and entities approach the courts seeking
redressal for grievances and conflicts. Through a fair and impartial hearing, the
courts interpret laws, apply legal principles, and provide judgments that
determine rights, obligations, and liabilities. This process helps maintain social
order by ensuring that conflicts are resolved according to established legal
norms.
2. Constitutional interpretation: The judiciary in India is entrusted with the
responsibility of interpreting the Constitution. The Supreme Court, as the
highest judicial authority, has the power of judicial review, allowing it to
examine the constitutionality of laws and governmental actions. By interpreting
the Constitution, the judiciary safeguards fundamental rights, protects the
principles of democracy, and ensures the harmonious functioning of the three
branches of government.
3. Protection of individual rights: The judicial process serves as a safeguard for
individual rights and liberties. Citizens can approach the courts to seek
protection from any violation of their constitutional rights. For example, in the
case of Maneka Gandhi v. Union of India, the Supreme Court held that the
right to personal liberty under Article 21 of the Constitution includes the right
to travel abroad. Such decisions reinforce the importance of individual rights
and provide a check against any arbitrary exercise of power.
 4. Public interest litigation (PIL): In India, PIL has become an important aspect
of the judicial process. It allows citizens to approach the courts on behalf of the
public interest, highlighting issues related to social justice, human rights, and
environmental concerns. PIL has been instrumental in bringing about
significant social changes, such as the banning of child labor in certain
industries and the protection of the rights of marginalized communities.
5. Checks and balances: The judiciary acts as a check on the legislative and
executive branches of government. It ensures that the actions of the
government are within the confines of the Constitution and that they do not
violate the rights of citizens. Through its power of judicial review, the judiciary
can strike down laws and executive actions that are unconstitutional. This
balance of power strengthens democracy and prevents any abuse or excesses of
authority.

While the judicial process in India serves as an important instrument of social

ordering, it is not without its limitations. Challenges such as case backlogs,
delays in the disposal of cases, and limited access to justice for marginalized
sections of society hinder the effective functioning of the judicial system.
However, efforts are being made to address these issues and enhance the
efficiency and inclusiveness of the judicial process.

In conclusion, the judicial process in India plays a vital role in social ordering
by adjudicating disputes, interpreting the Constitution, protecting individual
rights, promoting public interest, and maintaining checks and balances in
governance. It serves as a guardian of the rule of law, ensuring justice,
fairness, and equality in society.

The judicial process in India plays a crucial role in maintaining social order
and upholding the values enshrined in the Indian Constitution. It is an
essential instrument for ensuring justice, protecting individual rights, resolving
disputes, and maintaining harmony in society.

Let's discuss the nature and scope of the judicial process in

India as an instrument of social ordering.

1. Nature of Judicial Process: The judicial process in India is based on the

principles of the rule of law, independence of the judiciary, and the doctrine of
separation of powers. It is designed to interpret and apply the laws of the land,
including the Constitution, and ensure justice is delivered impartially and without
fear or favor. The judiciary functions as a guardian of fundamental rights and
principles, acting as a check on the actions of the executive and legislative branches
of the government.
2. Scope of Judicial Process in India: The scope of the judicial process in India
is vast and covers a wide range of issues, including civil, criminal, constitutional, and
administrative matters. It involves both the Supreme Court of India and various High
Courts at the state level. The judiciary also extends to district courts, tribunals, and
other specialized forums that deal with specific areas of law. Additionally, the judicial
process in India encompasses the principles of judicial review, enabling the courts to
examine the constitutionality and legality of laws and executive actions.
3. Judicial Process as an Instrument of Social Ordering: The judiciary in India
plays a crucial role in shaping social order and preserving constitutional values.
Some ways in which the judicial process serves as an instrument of social ordering in
India are:

a. Protection of Fundamental Rights: The judiciary safeguards fundamental

rights guaranteed by the Constitution, such as the right to life, liberty,
equality, and freedom of speech. It ensures that the government does not
infringe upon these rights and holds the state accountable for any violations.

b. Resolution of Conflicts: The judiciary acts as a neutral arbiter in resolving

conflicts and disputes among individuals, groups, or government entities. It
provides a forum for seeking justice and redressal for grievances.

c. Upholding Constitutional Values: The judicial process ensures the

supremacy of the Constitution and its values. It interprets the Constitution and
lays down precedents that guide the legal system and maintain the spirit of
constitutionalism.

d. Judicial Review: Through the power of judicial review, the judiciary can
strike down laws or executive actions that are unconstitutional or violate
fundamental rights. This acts as a check on the government's powers and
ensures its actions are in line with constitutional provisions.

e. Social Justice: The judiciary also addresses issues of social justice and
inequality. It has often given landmark judgments in matters related to
affirmative action, reservation policies, and socio-economic rights, aimed at
uplifting marginalized and disadvantaged sections of society.

f. Environmental Protection: In recent years, the Indian judiciary has also

played a crucial role in environmental protection. It has intervened in cases of
environmental degradation and has issued directives for safeguarding the
environment and promoting sustainable development.

Examples and Cases:

1. Protection of Fundamental Rights: In the case of Maneka Gandhi v. Union of

India (1978), the Supreme Court held that the right to travel abroad is a fundamental
right under Article 21 (Right to Life and Personal Liberty) of the Constitution and
cannot be curtailed except by a procedure established by law.
2. Judicial Review: In the landmark case of Kesavananda Bharati v. State of
Kerala (1973), the Supreme Court upheld the basic structure doctrine, which states
that the Parliament cannot amend the basic structure of the Constitution. This
decision firmly established the principle of judicial review as an instrument for
preserving the integrity of the Constitution.
3. Social Justice: In the case of Indra Sawhney v. Union of India (1992),
commonly known as the Mandal Commission case, the Supreme Court upheld the
reservation policy for Other Backward Classes (OBCs) in government jobs and
educational institutions, with a cap of 50% reservation.
4. Environmental Protection: In the case of M.C. Mehta v. Union of India (1987),
popularly known as the Ganga Pollution case, the Supreme Court took cognizance of
the severe pollution of the River Ganges and issued directives to the government for
the protection and restoration of the river.

These examples illustrate how the judicial process in India has been
instrumental in safeguarding constitutional goals and values, protecting
individual rights, promoting social justice, and addressing issues of public
importance. The judiciary's role in interpreting and enforcing the law is crucial
for maintaining social order and ensuring justice in Indian society.

The judicial process plays a crucial role in the social ordering of a country like
India. It refers to the mechanisms through which the judiciary interprets and
applies the law to resolve disputes and maintain order in society. The nature
and scope of the judicial process in India are extensive, as it encompasses
various aspects of social, political, and economic life. It ensures the protection
of individual rights, promotes justice, and upholds the rule of law.

1. Protection of Individual Rights: The judicial process in India acts as a

safeguard for individual rights and liberties. It provides a platform for citizens to seek
redressal for any violation of their fundamental rights guaranteed by the
Constitution. The judiciary ensures that all individuals, regardless of their social
status, have access to justice and are treated fairly. For example, in the case of
Maneka Gandhi v. Union of India, the Supreme Court of India interpreted the right to
life and personal liberty under Article 21 expansively, extending it beyond mere
animal existence to include various aspects of human life.
2. Resolving Disputes and Maintaining Social Order: The judicial process
serves as a mechanism for resolving disputes and conflicts in society. It provides a
forum for individuals and entities to present their grievances and obtain a fair and
impartial judgment. By adjudicating disputes, the judiciary helps in maintaining
social order and stability. For instance, in the landmark judgment of Kesavananda
Bharati v. State of Kerala, the Supreme Court established the principle of basic
structure doctrine, which ensured the preservation of the core principles of the
Indian Constitution and prevented arbitrary changes to its fundamental features.
3. Interpreting and Applying the Law: The judicial process involves the
interpretation and application of laws to specific cases. The judiciary plays a crucial
role in clarifying legal provisions, resolving ambiguities, and establishing precedents.
Through its judgments, the judiciary provides guidance to other branches of the
government, citizens, and legal professionals on the interpretation and application of
the law. For example, in the case of Vishaka v. State of Rajasthan, the Supreme
Court laid down guidelines for preventing and redressing sexual harassment at the
workplace, filling a legislative vacuum and establishing a framework for addressing
such issues.
4. Upholding the Rule of Law: The judicial process ensures the supremacy of the
Constitution and the rule of law in India. It acts as a check on the actions of the
executive and legislative branches of the government to prevent abuse of power and
uphold the principles of democracy. The judiciary has the authority to strike down
laws and executive actions that are inconsistent with the Constitution. This power
serves as a vital mechanism for maintaining a balance of power and ensuring the
accountability of the government. For instance, in the case of S.R. Bommai v. Union
of India, the Supreme Court established guidelines to prevent the arbitrary use of
President's Rule by the central government and upheld the principles of federalism.

However, it is important to note that the effectiveness of the judicial process as

an instrument of social ordering in India can be influenced by various factors,
including the backlog of cases, delays in the disposal of cases, access to
justice, and the quality of judicial administration. Efforts are continuously
being made to improve the efficiency and accessibility of the judiciary to
enhance its effectiveness as an instrument of social ordering.

2. Discuss ‘Development of Law’ as a creativity of Judicial Process?

03/14,144-151 Or Explain, with examples that the “Judicial
Process” is potent creativity of Judges which helps in the growth of
Law. Cite Examples and case laws. QR Code:12237 Or
Discuss in detail a Growth of Law by Judicial and Legislative
Process? 03/14, 89-103 Or Law is indeed an historical growth.
That is the great truth in Sanigny’s theory of its origin. Explain?
09/13,104-117 Or Explain that the Growth of Legislations are the
results of Judicial Process?03/14, 24-37 Or

The development of law is a dynamic process that involves the interplay of both
judicial and legislative processes. The judicial process, in particular, plays a
significant role in shaping and expanding the law through its interpretative and
creative functions. Judges, through their judgments and decisions, contribute to
the growth and evolution of the legal framework. This creativity of the judicial
process can be observed through several examples and landmark cases.

1. Interpretation of Constitutional Provisions: The judicial process is

instrumental in interpreting and applying constitutional provisions, thereby
influencing the growth of constitutional law. The judiciary often encounters
situations where the language of the Constitution may be open to multiple
interpretations. In such cases, judges creatively interpret the Constitution to give
effect to its underlying principles. For instance, in the case of Keshavananda
Bharati v. State of Kerala, the Supreme Court of India creatively interpreted the
Constitution to establish the doctrine of basic structure, which limits the power
of the Parliament to amend the Constitution and preserves its fundamental
features.
2. Expanding Fundamental Rights: The judiciary, through its creative
interpretation of fundamental rights, has expanded the scope of individual
freedoms and rights. Over time, the Supreme Court of India has given a broad
and liberal interpretation to fundamental rights to address the changing needs of
society. For example, in the case of Navtej Singh Johar v. Union of India, the
Supreme Court decriminalized consensual homosexual acts by reading down
Section 377 of the Indian Penal Code. This decision demonstrated the creative
approach of the judiciary in expanding the scope of individual rights to include
the rights of the LGBTQ+ community.
3. Filling Legislative Gaps: The judicial process plays a vital role in filling
gaps in legislation through its interpretative powers. When statutes are
ambiguous or do not provide clear guidance, judges creatively interpret the law
to address the legislative gap. For instance, in the case of Vishaka v. State of
Rajasthan, the Supreme Court of India formulated guidelines to prevent and
address sexual harassment at the workplace, filling a legislative void. This
decision showcased the judiciary's creativity in formulating new norms and
principles to protect the rights of women in the absence of specific legislation.
4. Adapting to Social Change: The judicial process responds to societal
changes and adapts the law accordingly. Judges creatively interpret existing
laws to keep pace with evolving societal values and norms. This is particularly
evident in cases involving social issues such as gender equality, reproductive
rights, and environmental protection. For example, in the case of Suchita
Srivastava v. Chandigarh Administration, the Supreme Court recognized a
woman's right to make decisions about her reproductive choices, including the
right to access abortion. This decision reflected the judiciary's creative approach
in addressing evolving social issues.
5. Overturning Precedents: The judicial process has the power to overturn
its own precedents when there is a need for legal reform or to rectify past errors.
This allows the law to grow and adapt to changing circumstances. Notable
examples include the landmark judgments in cases such as Maneka Gandhi v.
Union of India and Kesavananda Bharati v. State of Kerala, which overruled
earlier decisions to establish new legal principles and doctrines.

In summary, the growth of law is a result of both the judicial and legislative
processes. The creativity of the judicial process is evident in its ability to
interpret laws, expand fundamental rights, fill legislative gaps, adapt to social
change, and overturn precedents. Through these mechanisms, the judicial
process contributes significantly to the development and evolution of the legal
framework, ensuring that the law remains relevant and responsive to the needs
of society.

The development of law through the judicial process is a fascinating aspect of

legal evolution. Over time, judges, through their decisions and interpretations,
contribute to the growth and evolution of the legal system.

The creativity of judges in shaping the law is evident through

the following mechanisms:

1. Precedent and Stare Decisis: One of the fundamental principles of the

common law system is the doctrine of precedent or stare decisis. It means that
decisions made in higher courts become binding precedents for lower courts to
follow in similar cases. By interpreting existing laws and applying them to
specific situations, judges create legal precedents that guide future cases. These
precedents form the basis for the development of the law and ensure consistency
and predictability in legal decisions.

Example: The M.C. Mehta v. Union of India (1986) case, commonly known as
the Oleum Gas Leak case, led to the establishment of the principle of "absolute
liability" in environmental law. The Supreme Court held that an enterprise
engaged in hazardous activities is absolutely liable for any harm caused,
regardless of the level of care taken to prevent it. This landmark judgment
significantly influenced subsequent environmental law cases and shaped the
liability of industries in environmental disasters.

2. Interpretation of Statutes: Judges play a crucial role in interpreting

statutes passed by the legislative body. When statutory language is ambiguous
or leaves room for interpretation, courts provide clarity by deciphering the
legislative intent behind the law. Their interpretations fill gaps in legislation and
adapt the law to changing societal norms and values.

Example: In the case of Kesavananda Bharati v. State of Kerala (1973), the

Supreme Court of India interpreted Article 368 of the Indian Constitution, which
deals with the power to amend the Constitution. The court held that while
Parliament had the power to amend the Constitution, it could not alter its basic
structure, thus protecting the core values of the Constitution from arbitrary
amendments.

3. Judicial Activism: In certain situations, judges may take an active role

in addressing societal issues that require legal intervention. Through Public
Interest Litigations (PILs), they can take up matters of public concern and make
decisions that have far-reaching implications for the development of the law and
social justice.

Example: Vishaka v. State of Rajasthan (1997) was a landmark case in India

where the Supreme Court recognized sexual harassment at the workplace as a
violation of fundamental rights under the Constitution. The court laid down
guidelines to prevent and address such harassment, filling the legislative
vacuum and shaping the law on workplace harassment.

4. Filling Legal Gaps: In complex and evolving legal scenarios, judges are
often required to decide cases where there are no explicit laws governing the
matter. In such situations, they rely on principles of equity, justice, and fairness
to arrive at a decision. These judicial decisions may inspire the legislature to
enact specific laws to address the issue formally.

Example: The Vishakha Guidelines (mentioned earlier) laid down by the

Supreme Court in the absence of specific legislation on sexual harassment at the
workplace served as a precursor to the enactment of the Sexual Harassment of
Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013.

5. Overruling and Changing Prior Decisions: As societal values and

circumstances change, judges may find it necessary to overrule or modify
previous decisions to keep the law relevant and just. This ensures that the law
adapts to contemporary challenges and aligns with the evolving needs of society.

Example: The Supreme Court of the United States, in the case of Brown v.
Board of Education (1954), overturned the earlier "separate but equal" doctrine
established in Plessy v. Ferguson (1896). The Brown decision declared racial
segregation in public schools as unconstitutional, marking a significant change
in civil rights jurisprudence.

In summary, the judicial process, through its interpretative role, precedent-

setting, activism, and filling of legal gaps, plays a significant creative role in the
growth and development of law. Judges contribute to legal evolution by shaping
the law to address emerging issues, protect rights, and ensure justice in society.

What is the Legal Development and Creativity through legal

reasoning under Statutory and Codified system? Cite Examples
09/13, 03/14, 201-205 Or Highlight the Statutory & Codified
Systems of Legal Development. Give Examples and proper Case
Law? 03/12,03/14, 201-204 26906,
Judicial Process and Growth of Law 1 279
Legal Development through Codification 1 201-04

Legal development and creativity through legal reasoning in a statutory and

codified system primarily revolve around the interpretation and application of
statutes and codes. In such systems, the law is primarily derived from written
laws enacted by the legislative body. Here are the key aspects of legal
development and creativity in a statutory and codified system, along with
examples and case laws:

1. Interpretation of Statutes: In a statutory system, judges are tasked

with interpreting the language and provisions of statutes to determine their
intended meaning and scope. This involves examining the legislative intent
behind the law and applying established principles of statutory interpretation.

Example: In the case of R v. Allen (1872), the defendant was charged with
bigamy, which required the prosecution to prove that the defendant's first
marriage was valid and subsisting. The statute at that time used the phrase
"marry during the lifetime of the husband or wife." The House of Lords
interpreted this phrase to mean "validly marry," rather than "go through a
marriage ceremony." This interpretation expanded the scope of the offense and
allowed the defendant to be convicted.

2. Application of Precedents: Although a statutory system relies heavily

on written laws, prior judicial decisions can still play a role in shaping legal
development. Precedents, especially those interpreting statutes, serve as guiding
principles for future cases with similar legal issues.

Example: The case of Pepper v. Hart (1993) in the United Kingdom involved the
interpretation of a tax statute. The House of Lords departed from the general
rule that excluded the use of parliamentary debates to interpret statutes. They
allowed reference to parliamentary debates to understand the background and
purpose of the legislation, expanding the scope of statutory interpretation and
allowing a wider range of sources to be considered.
3. Judicial Creativity in Filling Gaps: In statutory and codified systems,
judges may encounter cases where the law is silent or ambiguous on a particular
matter. In such situations, they exercise judicial creativity to fill these legal gaps
by drawing inferences, considering the legislative intent, and applying general
legal principles.

Example: In the case of Donoghue v. Stevenson (1932), the House of Lords

established the modern concept of negligence in the law of torts. The court held
that a manufacturer owes a duty of care to consumers, even in the absence of a
contractual relationship, when the product poses a reasonably foreseeable risk
of harm. This groundbreaking decision filled a gap in the existing law and led to
the development of the tort of negligence.

4. Evolution of Legal Principles: Statutory and codified systems provide a

framework for the development and evolution of legal principles. Over time,
judicial decisions and legislative amendments contribute to the growth and
refinement of legal doctrines and concepts.

Example: In the United States, the Civil Rights Act of 1964 prohibited
discrimination based on race, color, religion, sex, or national origin. Through
subsequent judicial interpretations and landmark cases like Brown v. Board of
Education (1954) and Loving v. Virginia (1967), the scope of civil rights
protection expanded, leading to the development of principles of equal protection
and non-discrimination.

5. Legislative Amendments: In a statutory system, the legislature has the

power to enact new laws or amend existing ones to address emerging issues or
rectify judicially identified shortcomings. Legislative amendments can codify
judicial interpretations or change the law based on societal needs and evolving
values.

Example: In India, the Supreme Court's decision in Vishaka v. State of

Rajasthan (1997) recognized sexual harassment at the workplace as a violation
of fundamental rights. This judicial activism led to the subsequent enactment of
the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and
Redressal) Act in 2013, which provided a comprehensive legal framework for
addressing workplace harassment.

In summary, legal development and creativity in a statutory and codified system

involve interpreting statutes, applying precedents, filling legal gaps, evolving
legal principles, and legislative amendments. Through these processes, judges
contribute to the growth and evolution of the law, ensuring its relevance and
adaptability in addressing societal needs.

Legal development and creativity through legal reasoning can occur in both
statutory and codified legal systems.

Let's explore these two systems and provide examples of how legal
development and creativity take place in each:
1. Statutory System: In a statutory system, the primary source of law is
legislation enacted by the legislature. Judges interpret and apply these statutes
to resolve disputes. Legal development and creativity in this system occur
through various methods:

a. Interpretation of Statutes: Judges often encounter ambiguous or unclear

statutory language. In such cases, they use legal reasoning to interpret the
legislative intent behind the law and apply it to specific situations. The goal is to
give effect to the purpose of the statute while staying within the bounds of its
language.

Example: Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984)
is a landmark case in the United States that established the Chevron doctrine.
The court held that when a statute is ambiguous, courts should defer to a
reasonable interpretation by the relevant administrative agency responsible for
enforcing the statute.

b. Filling Legal Gaps: Statutes may not always cover all possible situations or
scenarios. Judges, when faced with gaps in the law, may use legal reasoning to
decide cases based on the principles of fairness, justice, and public policy.

Example: In Donoghue v. Stevenson (1932), a famous case in the United

Kingdom, the House of Lords established the modern concept of negligence.
Though there was no specific statute on the matter, the court relied on the
principle of duty of care to recognize that manufacturers owe a duty of care to
consumers for the safety of their products.

c. Harmonization of Laws: In some cases, there might be conflicts or

inconsistencies between different statutes. Judges engage in legal reasoning to
harmonize these laws to ensure a coherent and consistent legal framework.

Example: In the case of Ghaziabad Development Authority v. Balbir Singh

(2004), the Supreme Court of India harmonized two environmental statutes, the
Environment (Protection) Act and the Water (Prevention and Control of Pollution)
Act, to address environmental pollution effectively.

2. Codified System: In a codified system, laws are consolidated into a

single code or comprehensive legal document. Legal development and creativity
in this system arise through:

a. Interpretation of Codes: Judges engage in legal reasoning to interpret the

provisions of the code and determine its application to specific cases. As codes
encompass multiple areas of law, judges must apply legal reasoning to ensure
consistency and coherence within the code.

Example: The Indian Penal Code (IPC) is a codified criminal law in India. In the
case of State of Punjab v. Major Singh (1966), the Supreme Court interpreted the
provisions of the IPC to determine the mens rea (guilty mind) required for the
offense of murder.
 b. Judicial Refinement: Over time, courts may refine and reinterpret provisions
in the code to adapt to changing societal norms and values. This process of
judicial refinement contributes to the evolution of the law.

Example: In the case of Kesavananda Bharati v. State of Kerala (1973),

mentioned earlier, the Supreme Court interpreted the amending power under
Article 368 of the Indian Constitution to preserve the basic structure of the
Constitution.

c. Bridging Code Gaps: Similar to the statutory system, judges in codified

systems may encounter situations not explicitly covered by the code. Legal
reasoning helps bridge these gaps and ensure just outcomes.

Example: In the case of Bachan Singh v. State of Punjab (1980), the Supreme
Court of India relied on legal reasoning to establish guidelines for imposing the
death penalty, as the Indian Penal Code did not provide detailed criteria for
sentencing in capital punishment cases.

In both statutory and codified systems, legal development and creativity through
legal reasoning ensure that the law remains responsive to societal changes,
addresses emerging issues, and promotes justice. Through interpretation, gap
filling, harmonization, and refinement, judges play a crucial role in shaping the
law and contributing to its evolution.

3. Critically analyze the Role of Supreme Court with special reference of

Judicial Creativity in India. Briefly explain the tools & techniques of
Judicial creativity along with its limitations in present scenario?
05/18, Or
Discuss in detail the tools & techniques of Judicial Creativity &
Activism in India? 05/16, Or
What is Judicial Creativity? Discuss the Significance of its tools
& techniques in the Administration of Justice System in India?
04/14,05/17, 144-152,156-170
Judicial Creativity-Tools & Techniques 2 156-169
Judicial Creativity Vs Judicial Restrain 1

The Supreme Court of India plays a critical role in shaping the law and
displaying judicial creativity. Judicial creativity refers to the ability of judges to
interpret laws, fill gaps, and develop new legal principles to address emerging
issues and ensure justice. The Supreme Court utilizes various tools and
techniques to exercise judicial creativity and activism in India. However, it is
essential to assess these tools and techniques along with their limitations in the
present scenario.

1. Interpretation: Interpretation of statutes and the Constitution is a

fundamental tool for judicial creativity. Judges analyze the language, intent, and
purpose of laws to derive meaningful interpretations that adapt to changing
circumstances and align with evolving societal values.
2. Expansion of Constitutional Rights: The Supreme Court, through
judicial creativity, expands the scope and meaning of constitutional rights. By
adopting a progressive and dynamic approach, the Court interprets fundamental
rights to encompass new dimensions and protect marginalized groups.

Example: In the case of Navtej Singh Johar v. Union of India (2018), the
Supreme Court decriminalized consensual same-sex relations, recognizing the
right to privacy and personal autonomy as fundamental rights under the
Constitution.

3. Judicial Activism: Judicial activism involves the active engagement of

the judiciary in addressing societal issues and shaping public policy. It includes
the use of Public Interest Litigations (PILs) and expanding the traditional
boundaries of judicial review.

Example: The Supreme Court has employed judicial activism to protect the
environment, regulate pollution, and safeguard the rights of marginalized
communities. For instance, in the case of MC Mehta v. Union of India (1986), the
Court ordered the closure of polluting industries in Delhi to tackle severe air
pollution.

4. Guideline Formulation: The Supreme Court formulates guidelines and

principles to address issues that lack specific legislation. These guidelines
become binding on the government and other institutions, ensuring protection
and promotion of rights in the absence of legislation.

Example: In the Vishaka v. State of Rajasthan (1997) case, the Supreme Court
established guidelines to prevent and address sexual harassment at the
workplace until the enactment of the Sexual Harassment of Women at
Workplace (Prevention, Prohibition, and Redressal) Act, 2013.

5. Public Interest Litigations (PILs): PILs allow citizens to bring cases to

the Court's attention for the protection of public interest. The Supreme Court,
through PILs, has addressed various issues concerning human rights,
environmental protection, corruption, and access to justice.

Example: The PIL filed in the Bandhua Mukti Morcha v. Union of India (1984)
case led to the Supreme Court recognizing and addressing bonded labor in India,
establishing guidelines for its eradication.

While judicial creativity and activism have significantly contributed to the

development of law and protection of rights in India, there are some limitations
to consider:

1. Separation of Powers: Judicial creativity must operate within the

boundaries of the separation of powers. The judiciary should be cautious not to
encroach upon the legislative or executive domains and respect the primacy of
the legislature in lawmaking.
2. Judicial Restraint: While judicial activism is crucial, excessive
intervention by the judiciary in policy matters can raise concerns about the
balance of power. Judges must exercise restraint and respect the principle of
deference to the elected branches of government.
3. Lack of Clarity: Judicial creativity can sometimes result in ambiguous
or conflicting judgments, leading to uncertainty in the law. Inconsistency in
judicial decisions can hinder the predictability and coherence of the legal
system.
4. Limited Resources: The Supreme Court faces challenges in terms of its
capacity and resources to handle a vast number of cases and deliver timely
justice. This limitation can affect the effectiveness and efficiency of judicial
creativity.
5. Democratic Accountability: While judicial creativity can be
transformative, it is essential to ensure democratic accountability. Decisions that
significantly impact public policy should be subject to public scrutiny and
debate to maintain the democratic ethos.

In conclusion, the tools and techniques of judicial creativity, such as

interpretation, expansion of constitutional rights, activism, guideline
formulation, and PILs, have played a significant role in shaping the Indian legal
landscape. However, it is crucial to balance judicial creativity with the
limitations discussed to ensure the effective functioning of the judiciary within
the framework of a democratic society.

Judicial creativity refers to the ability of the judiciary, particularly the Supreme
Court, to creatively interpret and apply the law to address new and complex legal
issues that may not have been explicitly addressed by the legislature. In the
Indian context, the role of the Supreme Court in exercising judicial creativity has
been significant, and it plays a crucial role in the administration of justice. Let's
delve into the tools and techniques of judicial creativity along with their
significance and limitations:

Tools and Techniques of Judicial Creativity in India:

1. Interpretation of the Constitution and Laws: The Supreme Court

employs various methods of constitutional and statutory interpretation, such as
literal, purposive, and contextual interpretations. By interpreting the
Constitution and laws in a progressive and forward-looking manner, the court
ensures that the law adapts to societal changes and emerging challenges.
2. Use of Precedents: The doctrine of precedent (stare decisis) allows the
Supreme Court to build on earlier decisions and create new legal principles to
address contemporary issues. The court may distinguish or overrule precedents
when necessary to bring about a just and equitable outcome.
3. Expansive Interpretation of Fundamental Rights: The Supreme Court
has creatively interpreted fundamental rights enshrined in the Indian
Constitution to expand their scope and protect the rights of marginalized and
vulnerable sections of society. This ensures social justice and inclusivity.
4. Public Interest Litigation (PIL): PIL is an instrument of judicial activism
that allows individuals and organizations to bring matters of public concern to
the court's attention. The court, through PIL, has taken up numerous social,
environmental, and human rights issues, leading to significant policy changes
and reforms.
5. Filling Legislative Gaps: In the absence of explicit laws, the court may
apply principles of justice, equity, and fairness to fill legal gaps and ensure
access to justice.
6. Harmonization of Laws: The Supreme Court often harmonizes
conflicting laws and interpretations to provide a coherent and consistent legal
framework.

Significance of Judicial Creativity in the Administration of

Justice System in India:

1. Addressing Evolving Legal Issues: Judicial creativity allows the

Supreme Court to respond effectively to emerging and complex legal challenges
that may not have been foreseen by the legislature.
2. Safeguarding Fundamental Rights: The court's creative interpretation
of fundamental rights ensures their protection and enforcement, promoting a
just and rights-conscious society.
3. Social Justice and Equity: By creatively using the law to address social
issues, the court contributes to a more equitable and inclusive society.
4. Bridging Legal Gaps: Judicial creativity bridges legislative gaps and
ensures that justice is not denied due to the absence of explicit laws.
5. Promoting Accountability: Judicial activism and creativity hold the
executive and legislative branches accountable for their actions and ensure the
rule of law.

Limitations of Judicial Creativity in the Present Scenario:

1. Separation of Powers: Judicial creativity, while necessary to fill

legislative gaps, may sometimes encroach upon the domain of the legislature,
leading to concerns about the separation of powers.
2. Judicial Overreach: Excessive judicial activism can lead to allegations of
judicial overreach and infringe on the role of the other branches of government.
3. Policy Making: While judicial creativity may lead to policy changes, it is
essential for the court to be cautious not to usurp the role of policy-making,
which primarily lies with the legislature.
4. Judicial Backlog: The extensive use of creative judicial techniques,
coupled with a vast number of pending cases, can contribute to delays in the
delivery of justice.

In conclusion, judicial creativity, while essential for the administration of justice

in India, must be exercised judiciously and with due regard for the principles of
separation of powers and the rule of law. The Supreme Court's role as a creative
interpreter and protector of fundamental rights has played a significant role in
shaping Indian jurisprudence and ensuring justice for all.
4. Explain in detail that – The Public Interest Litigation work as a
Judicial Arm and New dimensions in achieving Justice which
forms a significant part of Judicial Process? 03/12,05/13, 212-231
QP code 12237 Or Discuss the significance of PIL as one of the Tool
of Judicial Process in the light of recent Judicial discourse? 10/16,
Or Critically analyze the nature & scope of PIL as a tool of judicial
creativity in India. What are the remedies available in case of misuse
of PIL? 05/19,
Public Interest Litigation 1 212-233

Public Interest Litigation (PIL) has emerged as a powerful tool within the judicial
process in India, enabling citizens to seek justice and promote public welfare. It
allows individuals and organizations to approach the court on behalf of the
public interest, even if they are not directly affected by the issue at hand. Let's
discuss the significance of PIL, its nature and scope, and the remedies available
in case of its misuse:

Significance of PIL as a Tool of Judicial Process:

1. Access to Justice: PIL provides an avenue for individuals or groups who

may lack the resources or standing to file traditional lawsuits to seek justice. It
empowers marginalized sections of society to approach the courts directly,
ensuring their access to justice.
2. Promotion of Social Justice: PIL enables the judiciary to address
systemic injustices and social issues that impact a large number of people. It
helps in correcting societal imbalances and promoting equality and social
welfare.
3. Accountability and Transparency: PIL acts as a check on the
government and public authorities, holding them accountable for their actions or
omissions. It ensures transparency and prevents abuse of power.
4. Judicial Activism: PIL has been a catalyst for judicial activism,
encouraging the courts to take proactive measures to protect fundamental
rights, uphold the rule of law, and enforce public accountability.
5. Policy Reforms: Through PIL, the judiciary has influenced policy
changes and brought about significant legal and administrative reforms. It helps
bridge gaps in legislation and ensures the effective implementation of laws.

Nature and Scope of PIL as a Tool of Judicial Creativity:

1. Expansive Interpretation: Courts have interpreted the concept of locus

standi liberally, allowing public-spirited individuals or organizations to file PIL
petitions on behalf of others or to address issues affecting the public interest.
2. Remedial Jurisprudence: PIL allows the courts to provide remedies
beyond mere legal relief, including issuing guidelines, monitoring
implementation, and directing government agencies to take action. This helps in
the effective enforcement of fundamental rights.
3. Broad Range of Issues: PIL has been used to address various socio-
economic and environmental issues, including human rights violations,
environmental degradation, gender equality, corruption, and access to education
and healthcare.

Remedies Available in Case of Misuse of PIL:

While PIL has been instrumental in advancing justice, there have been instances
where it has been misused or filed with mala fide intentions. To address such
concerns, the judiciary has established certain safeguards:

1. Costs: Courts have the discretion to impose costs on frivolous or

vexatious PIL petitions. This discourages misuse and ensures that only genuine
cases are brought before the court.
2. Contempt of Court: The courts can initiate contempt proceedings
against individuals or organizations who abuse the PIL mechanism by filing
baseless or scandalous petitions.
3. Intervention by Affected Parties: The court may allow affected parties
to intervene in PIL proceedings to present their perspective and ensure that their
rights are adequately protected.
4. Judicial Scrutiny: Courts carefully examine PIL petitions to determine
their maintainability and legitimacy. They ensure that the petition raises genuine
public interest issues and is not motivated by personal gain or malice.
5. Guidelines and Directions: The courts have issued guidelines to
regulate the filing and processing of PIL petitions, ensuring that they adhere to
the principles of justice, fairness, and transparency.

In conclusion, PIL has emerged as a vital tool within the judicial process,
allowing individuals and organizations to seek justice in matters of public
interest. While PIL facilitates access to justice, promotes social welfare, and
holds the government accountable, it is important to maintain a balance and
prevent its misuse through the appropriate application of costs, contempt
proceedings, and judicial scrutiny. PIL continues to be a significant aspect of
judicial creativity and contributes to the achievement of justice in India.

Public Interest Litigation (PIL) is a significant tool of judicial process in India that
has expanded the scope of access to justice and provided a new dimension in
achieving justice. It serves as a judicial arm that allows citizens to seek justice
for not only their own grievances but also for broader societal concerns. PIL has
played a transformative role in Indian jurisprudence, enabling the judiciary to
intervene in matters of public interest and social justice. Let's explore the
nature, scope, and significance of PIL in the Indian judicial system:

Nature and Scope of PIL in India:

1. Access to Justice: PIL allows any individual or organization, acting in

the interest of the public or a disadvantaged group, to approach the court
directly. It provides an avenue for those who cannot afford legal representation
or are otherwise marginalized to seek justice.
2. Expanding the Locus Standi: In traditional litigation, only aggrieved
parties directly affected by a legal wrong can approach the court. PIL broadens
the concept of locus standi, allowing any person to raise issues on behalf of
others who may be unable to approach the court themselves.
3. Writ Jurisdiction: PIL is usually filed under the writ jurisdiction of the
higher courts (Supreme Court and High Courts). The court issues writs, such as
Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto, to
protect fundamental rights and enforce public duties.
4. Social Justice and Public Interest: PIL primarily focuses on matters of
public interest and social justice, such as environmental protection, human
rights, women's rights, child rights, corruption, and transparency in governance.

Significance of PIL as a Tool of Judicial Process:

1. Access to Justice for the Marginalized: PIL empowers the marginalized

sections of society, including the poor, disadvantaged, and voiceless, to seek
justice and remedies for societal issues affecting them.
2. Judicial Activism: PIL reflects the judiciary's proactive approach in
addressing social concerns and playing a role in policy matters that affect the
larger public.
3. Checks and Balances: PIL acts as a check on the executive and
legislative branches of the government, ensuring accountability and
transparency in their actions.
4. Environmental Protection: PIL has been instrumental in addressing
environmental degradation, leading to landmark judgments and regulations to
protect the environment.
5. Human Rights Protection: PIL has been used to protect the rights of
vulnerable groups, such as prisoners, women, children, and the elderly.
6. Empowerment of Citizens: PIL empowers citizens to be active
participants in governance and policy-making by holding authorities
accountable.

Remedies for Misuse of PIL:

While PIL has been instrumental in bringing about positive changes, there have
been instances of its misuse. To prevent misuse and maintain the integrity of the
judicial process, some remedies are available:

1. Cost Implications: Courts may impose costs on petitioners in case of

frivolous or vexatious PILs to discourage misuse and ensure that only genuine
issues are raised.
2. Screening Mechanism: Some courts have introduced a screening
mechanism to scrutinize PIL petitions and filter out those without merit.
3. Contempt of Court Proceedings: In cases where PIL petitions are filed
with mala fide intentions or to scandalize the court, contempt of court
proceedings may be initiated against the petitioner.
4. Strict Adherence to Rules: Courts may ensure strict adherence to
procedural rules and guidelines for filing PILs to prevent misuse.
5. Public Interest Litigation vs. Personal Interest Litigation: Courts
must carefully distinguish between PILs genuinely raised in the public interest
and those motivated by personal interests.
 In conclusion, Public Interest Litigation serves as a vital tool of judicial creativity
in India, empowering citizens to participate in the pursuit of justice and social
welfare. However, the judiciary must remain vigilant to prevent its misuse and
ensure that PIL petitions are genuinely aimed at addressing larger public
concerns.

5. What is Doctrine of Precedent? Explain its significance in Indian

Legal System with the help of Judicial Decisions? 05/16, Or Write on
the notions of “Precedent” as a part of Judicial Creativity. Explain
with relevant cases. QP code 12237 Or
According to Radlich ‘Every Precedent has directive force for
future cases of same or similar nature’. Explain the significance of
Doctrine of Precedent in Indian Legal System? 11/17, Or
Critically comment in full that the ‘Function of Judiciary is to
interpret the law and not to make the law’. Explain the Roll of
Judges in creating the Law of Precedent? 09/13,05/17, 277
Doctrine of Precedent-Merits & Demerits Or Law of Precedent 6 156-69/277

The doctrine of precedent, also known as stare decisis, is a fundamental

principle in the Indian legal system. It refers to the practice of courts following
previously decided cases with similar facts and legal issues. The doctrine of
precedent ensures consistency, predictability, and stability in the application of
law. Let's explore the significance of the doctrine of precedent in the Indian legal
system, along with relevant judicial decisions:

Significance of the Doctrine of Precedent in the Indian Legal System:

1. Binding Force: Precedents set by higher courts are binding on lower

courts within their jurisdiction. This ensures uniformity and consistency in the
application of the law.
2. Predictability and Certainty: The doctrine of precedent provides
predictability and certainty in legal outcomes. It allows individuals to
understand and anticipate how the law will be applied in similar cases.
3. Promotes Fairness and Justice: Precedents ensure that similar cases
are treated in a consistent manner, avoiding arbitrariness and promoting
fairness and justice.
4. Judicial Efficiency: Precedents reduce the burden on the judiciary by
providing a framework for resolving similar cases. Courts can rely on established
legal principles, saving time and resources.
5. Development of Law: Precedents play a crucial role in the growth and
development of the law. Over time, judicial decisions contribute to the evolution
of legal principles and doctrines.

Relevant Judicial Decisions:

1. Kesavananda Bharati v. State of Kerala (1973): In this landmark case,

the Supreme Court of India laid down the doctrine of basic structure. The court
held that the power of the Parliament to amend the Indian Constitution is not
unlimited and that it cannot alter its basic structure. This decision established a
precedent that has been followed in subsequent cases involving constitutional
amendments.
2. Maneka Gandhi v. Union of India (1978): The Supreme Court
expanded the scope of the right to personal liberty and held that the procedure
established by law must be fair, just, and reasonable. This decision set a
precedent for interpreting the fundamental rights guaranteed under Article 21 of
the Indian Constitution.
3. Vishaka v. State of Rajasthan (1997): The Supreme Court, in this case,
recognized sexual harassment at the workplace as a violation of fundamental
rights. The court laid down guidelines to prevent and redress such harassment,
creating a precedent for addressing gender-based workplace discrimination.
4. Shayara Bano v. Union of India (2017): The Supreme Court declared
the practice of instant triple talaq (divorce) among Muslims as unconstitutional
and a violation of women's rights. This decision set a precedent for future cases
involving personal laws and gender equality.

In each of these cases, the court's decisions have established precedents that
guide subsequent cases and provide direction to the lower courts.

In conclusion, the doctrine of precedent is of immense significance in the Indian

legal system. It ensures consistency, predictability, and fairness in the
application of the law. Precedents set by higher courts serve as guiding
principles for future cases, contributing to the development and evolution of
legal principles and doctrines.

The Doctrine of Precedent, also known as the principle of stare decisis, is a

fundamental aspect of the common law legal system, including the Indian legal
system. It means that decisions made by higher courts in past cases are binding
on lower courts when deciding similar cases in the future. The doctrine ensures
consistency, predictability, and stability in the legal system, while also allowing
for incremental changes in the law through the process of judicial creativity.
Let's explore the significance of the Doctrine of Precedent in the Indian legal
system with relevant cases:

Significance of the Doctrine of Precedent in the Indian Legal System:

1. Binding Nature: Under the doctrine of precedent, decisions of higher

courts (especially the Supreme Court) are binding on lower courts within their
jurisdiction. This ensures uniformity in the interpretation and application of the
law.
2. Predictability and Certainty: The doctrine provides predictability and
certainty to the legal system, as parties to a dispute can reasonably expect the
same legal principles to be applied to similar cases.
3. Legal Stability: Precedents create a stable foundation for the
development of the law, reducing uncertainty and promoting the rule of law.
4. Respect for Judicial Authority: Following precedent is an expression of
respect for the authority and expertise of higher courts, as decisions made by
superior courts are regarded as authoritative interpretations of the law.
5. Incremental Development of Law: The doctrine allows for gradual and
incremental changes in the law over time, as courts can distinguish or overrule
previous decisions when necessary.

Examples of Judicial Decisions Illustrating the Doctrine of Precedent in India:

1. Case: M. Nagaraj v. Union of India (2006) In this case, the Supreme

Court held that the creamy layer concept must be applied to Scheduled Castes
and Scheduled Tribes while providing reservations in public employment. The
decision in this case becomes a precedent, binding on future cases dealing with
the issue of reservation for backward classes.
2. Case: Kesavananda Bharati v. State of Kerala (1973) In this landmark
case, the Supreme Court held that the Parliament's power to amend the Indian
Constitution under Article 368 is not unlimited. The decision established the
basic structure doctrine, which states that certain essential features of the
Constitution cannot be amended. Subsequent cases have consistently followed
this doctrine as a binding precedent.
3. Case: Olga Tellis v. Bombay Municipal Corporation (1985) In this
case, the Supreme Court recognized the right to livelihood as a fundamental
right under Article 21 of the Indian Constitution. This judgment set a precedent
and formed the basis for subsequent decisions protecting the rights of slum
dwellers and pavement dwellers facing eviction.

Roll of Judges in Creating the Law of Precedent:

While the primary function of judges is to interpret the law and apply it to
specific cases, they also play a significant role in creating the law of precedent.
This happens through:

1. Distinguishing: Judges may distinguish a previous decision when they

find that the facts or legal principles involved in the current case are materially
different from those in the precedent. In such cases, the precedent is not
binding.
2. Overruling: Judges, especially those sitting in larger benches of the
same court, have the power to overrule a previous decision if they believe it was
wrongly decided or has become outdated.
3. Evolving Legal Principles: Through their interpretation and application
of the law, judges gradually evolve legal principles and doctrines, contributing to
the development of the law of precedent.

In conclusion, the Doctrine of Precedent is a crucial aspect of the Indian legal

system, providing stability, predictability, and consistency. While judges are
bound by precedents, they also play a creative role in shaping the law through
distinguishing, overruling, and evolving legal principles in pursuit of justice and
societal needs.
Module – II (1 Credit) 2. Special Dimensions of Judicial Process in Constitutional Adjudications:
Notions of judicial review. ‘Role’ in constitutional adjudication – various theories of review. Tools and
techniques in policy-making and creativity in constitutional adjudication, Varieties of judicial activism,
Problems of accountability and judicial law making.
6. Judicial Review is the Basic feature of CI. Explain the statement
with the help of recent Judicial decision? 04/14,10/16, 1-23 Or
Discuss the significance of notion of ‘Judicial Review’ in the
process of Constitutional Adjudication in India? 05/16, Or
Discuss the Tools and Techniques in Policy Making and
Creativity in Constitutional Adjudication in India with the help of
recent decisions of the Courts? 05/13,11/17, Or What is Judicial
Review? Explain the Role of Judges in enhancing the
applicability of notion of Judicial Review in India with the help of
Recent Judicial trend? 05/17,
Judicial Review or JR as Special Dimension of Judicial Process 4 01 to 23
Judicial Role in Constitutional Adjudication 2 279-81

Judicial review is a fundamental feature of constitutionalism, including the

Indian Constitution. It refers to the power of the judiciary to review and
determine the constitutionality of laws, executive actions, and governmental
decisions. Judicial review ensures that these actions are consistent with the
provisions and principles of the constitution. The significance of judicial review
in the process of constitutional adjudication in India can be understood by
examining recent judicial decisions. Let's explore the role of judicial review and
its applicability in India with the help of recent judicial trends:

Significance of Judicial Review in Constitutional Adjudication in

India:

1. Constitution as the Supreme Law: Judicial review reinforces the

supremacy of the constitution as the highest law of the land. It ensures that all
laws and actions of the government are in conformity with constitutional
principles.
2. Protecting Fundamental Rights: Judicial review enables the judiciary
to safeguard and protect fundamental rights enshrined in the Indian
Constitution. Courts can strike down laws and executive actions that violate
these rights, thereby upholding the principles of justice and equality.
3. Checking Legislative and Executive Powers: Judicial review acts as a
check on the powers of the legislative and executive branches of the government,
ensuring that they do not exceed their constitutional authority or infringe upon
the rights of individuals or the principles of federalism.
4. Upholding the Rule of Law: Judicial review promotes the rule of law by
ensuring that governmental actions are carried out in accordance with
established legal principles and procedures.

Tools and Techniques in Policy Making and Creativity in

Constitutional Adjudication in India:
1. Broad Interpretation of Fundamental Rights: Courts in India have
adopted a broad and expansive interpretation of fundamental rights, extending
their protection to new and emerging issues. For example, in Navtej Singh Johar
v. Union of India (2018), the Supreme Court decriminalized consensual same-sex
relations, recognizing the rights of LGBTQ+ individuals.
2. Evolving Constitutional Principles: Judges creatively interpret the
constitution to adapt to societal changes and evolving circumstances. In Justice
K.S. Puttaswamy (Retd) v. Union of India (2017), the Supreme Court recognized
the right to privacy as a fundamental right, expanding the scope of individual
liberty.
3. Public Interest Litigation (PIL): PIL is a powerful tool for judicial review
that allows citizens to raise matters of public concern before the court. Recent
cases, such as the banning of firecrackers in Delhi during Diwali to combat air
pollution, demonstrate the court's use of PIL to address public interest issues.
4. Harmonization of Laws: Courts engage in harmonizing conflicting laws
to ensure consistency and coherence in the legal framework. For instance, in
Shayara Bano v. Union of India (2017), the Supreme Court declared the practice
of triple talaq (instant divorce) among Muslims as unconstitutional, harmonizing
personal laws with the principles of gender equality.

Role of Judges in Enhancing the Applicability of Judicial Review in India:

1. Guardians of the Constitution: Judges play a vital role as guardians of

the constitution, ensuring that the actions of the government are within
constitutional limits. They interpret the constitution and exercise judicial review
to uphold its principles and protect individual rights.
2. Balancing Rights and Interests: Judges strike a balance between
individual rights and competing societal interests, considering the social,
economic, and political context of the issues at hand.
3. Evolving Legal Principles: Judges, through their decisions, contribute
to the evolution of legal principles, adapting them to contemporary needs and
challenges. They creatively interpret the constitution to address new and
complex issues.

Recent Judicial Trend:

The recent judicial trend in India reflects an active and creative approach to
constitutional adjudication. Courts have played a significant role in expanding
the scope of fundamental rights, protecting individual liberties, and addressing
social and environmental concerns. The emphasis on inclusive interpretation,
harmonization of laws, and promotion of substantive equality highlights the
judiciary's commitment to the principles of justice and fairness.

The notion of "Judicial Review" refers to the power of the judiciary to review and
invalidate laws, regulations, or executive actions that are found to be
unconstitutional or in violation of the fundamental rights guaranteed by the
constitution. It is considered a basic feature of constitutionalism as it serves as a
check on the exercise of power by the legislature and executive, ensuring their
actions conform to the constitutional framework. In India, the significance of
judicial review is evident in the process of constitutional adjudication, where the
courts interpret and apply the constitution to uphold its principles and protect
individual rights. Recent judicial decisions highlight the role of judges in
enhancing the applicability of judicial review in India. Let's explore this further:

Significance of Judicial Review in the Process of Constitutional

Adjudication in India:

1. Constitutionality of Laws: Judicial review allows the courts to examine

the constitutionality of laws passed by the legislature. It ensures that laws are
consistent with the constitutional principles, including fundamental rights,
separation of powers, and federalism.
2. Protection of Fundamental Rights: Judicial review plays a crucial role
in safeguarding the fundamental rights of citizens. Courts can strike down laws
or actions that infringe upon these rights, providing a remedy to individuals
whose rights have been violated.
3. Check on Executive Power: Judicial review acts as a check on the
exercise of executive power, preventing the abuse or overreach of authority.
Courts can strike down executive actions that are arbitrary, discriminatory, or in
violation of constitutional limits.
4. Constitutional Interpretation: Judicial review allows the courts to
interpret and clarify the provisions of the constitution, resolving ambiguities
and ensuring consistent application of constitutional principles.

Tools and Techniques in Policy Making and Creativity in Constitutional

Adjudication in India:

1. Literal and Purposive Interpretation: Judges employ both literal and

purposive interpretations to give effect to the intention of the framers and the
spirit of the constitution. This allows them to adapt the constitution to changing
social and legal contexts.
2. Harmonious Construction: The courts strive to harmonize conflicting
provisions of the constitution or statutes to maintain constitutional coherence
and uphold the constitutional values.
3. Doctrine of Severability: If a part of a law is found to be
unconstitutional, the courts may exercise the power of severability, striking
down the unconstitutional portion while preserving the rest of the law.
4. Progressive Interpretation: The judiciary adopts a progressive approach
to interpret constitutional provisions, evolving them in light of societal changes
and emerging challenges.

Role of Judges in Enhancing the Applicability of Judicial Review in India:

Recent judicial trends in India showcase the active role of judges in enhancing
the applicability of judicial review:

1. Protection of Fundamental Rights: The Supreme Court has

consistently expanded the scope of fundamental rights to include new and
emerging rights, such as the right to privacy, right to dignity, and right to clean
 environment. This demonstrates the judiciary's commitment to protecting
individual liberties through an expansive interpretation of the constitution.
2. Striking Down Unconstitutional Laws: The courts have struck down
several laws that were found to be in violation of constitutional principles, such
as the decriminalization of consensual same-sex relationships (Navtej Singh
Johar v. Union of India) and the ban on the entry of women of menstruating age
into the Sabarimala temple (Indian Young Lawyers Association v. State of
Kerala). These decisions reflect the judiciary's role in upholding constitutional
values and ensuring justice.
3. Judicial Activism: The courts have taken up public interest litigation
(PIL) cases to address social and environmental concerns, pushing for policy
changes and reforms in areas like air pollution, waste management, and
protection of marginalized communities.
4. Judicial Restraint: While exercising judicial review, judges also show
restraint by respecting the separation of powers and deferring to the legislative
and executive branches in matters of policy-making unless there is a clear
violation of constitutional principles.

In conclusion, judicial review is a fundamental feature of constitutionalism in

India. Recent judicial decisions demonstrate the significance of judicial review in
upholding the constitution, protecting fundamental rights, and ensuring the
accountability of the legislature and executive. Judges play a vital role in
enhancing the applicability of judicial review through constitutional
interpretation, policy-making, and protecting the rights of citizens.

Judicial review is a crucial aspect of constitutional adjudication in India. It

ensures the supremacy of the constitution, protects fundamental rights, and
checks the powers of the government. Judges employ various tools and
techniques, such as broad interpretation of rights, evolving legal principles, and
the use of PIL, to enhance the applicability of judicial review and promote
constitutionalism in the country.

7. Throw light on the Scope, Limit & Necessity of ‘Judicial Activism’

in the Judicial Process. Cite Case Laws? 05/13,03/14, Or “The
object of law is to achieve justice which gives recognition to the
dignity and decency of every individual”. Critically discuss the
notion of Judicial Activism in the light of Sunil Batra Vs Delhi
Administration Case? 11/18, Or
What is Judicial Activism? Discuss in detail the nature, scope and
limitations of Judicial Activism in Judicial Process in India? 05/17,
Or Throw light on the scope, necessity and limitations of “Judicial
Activism” in Judicial Process”. Cite relevant case laws. 48-63 QP
Code: 12237 Or
Explain in detail the concept of ‘Judicial Activism’ and ‘Judicial
Creativity’ of the Supreme Court. Cite Examples and Cases? 03/12
Discuss the necessity of Judicial Accountability in the process of
the law making in India? 10/16, 284-85 Or Explain varieties of
Judicial Activism and discuss the Institutional liabilities of
Courts of Law? 26906,
Judicial Activism 4 48-63
Judicial Activism Vs Judicial Restrain 1
Judicial Restrain 2 48-63
Judicial Accountability Or Problem of Accountability & Judicial Law making 4 278-79

Judicial activism refers to the active role played by the judiciary in shaping and
influencing public policy and addressing social and legal issues beyond the
traditional boundaries of adjudication. It involves judges interpreting the law in a
manner that goes beyond a strict interpretation of statutes or precedents and
actively engaging in policy-making or social reform. The scope, necessity, and
limitations of judicial activism in the judicial process can be discussed as
follows:

Scope of Judicial Activism:

1. Protecting Fundamental Rights: Judicial activism is often employed to

protect and expand fundamental rights, especially in cases where legislative or
executive action may infringe upon these rights. The judiciary plays a proactive
role in ensuring that constitutional guarantees are upheld.
2. Filling Legislative Gaps: In situations where there are legislative gaps or
ambiguities, judicial activism allows the judiciary to step in and provide
necessary guidance and interpretation, ensuring effective governance and
justice.
3. Social and Policy Reform: Judicial activism addresses pressing social
and policy issues that require immediate attention and resolution. The courts
use their powers to provide relief, initiate reforms, and shape public policy.

Necessity of Judicial Activism:

1. Safeguarding Justice: Judicial activism is necessary to ensure that

justice is delivered and constitutional rights are protected. It acts as a check on
the excesses of the executive and legislative branches and prevents the violation
of individual rights.
2. Addressing Legislative Inaction: In cases where the legislature fails to
address important social or legal issues, judicial activism becomes necessary to
fill the void and provide remedies to affected parties.
3. Correcting Past Injustices: Judicial activism plays a crucial role in
addressing historical injustices and inequalities. It allows the judiciary to rectify
systemic discrimination and provide redress to marginalized groups.

Limitations of Judicial Activism:

1. Separation of Powers: One of the limitations of judicial activism is the

need to respect the separation of powers. The judiciary should not encroach
upon the functions of the legislature and executive branches unless there is a
clear violation of constitutional principles.
2. Judicial Restraint: While judicial activism is necessary in certain
situations, judges must exercise restraint and avoid overstepping their
constitutional mandate. They should be mindful of the limits of their authority
and ensure that their decisions are based on sound legal reasoning.
3. Democratic Accountability: Judicial activism raises concerns about
democratic accountability, as unelected judges make decisions that have far-
reaching implications. It is important for the judiciary to strike a balance
between protecting rights and allowing elected representatives to make
policy decisions.

Case Laws Illustrating Judicial Activism:

1. Sunil Batra v. Delhi Administration (1978): In this case, the Supreme

Court of India expanded the scope of prisoners' rights by declaring that the
imposition of solitary confinement without procedural safeguards violated the
right to life and personal liberty under Article 21 of the Constitution.
2. Vishakha v. State of Rajasthan (1997): The Supreme Court, in this
case, laid down guidelines for the prevention and redressal of sexual harassment
in the workplace, filling the legislative vacuum in this area. The judgment
highlighted the proactive role of the judiciary in addressing issues affecting
women's rights and workplace safety.
3. Bandhua Mukti Morcha v. Union of India (1984): The Supreme Court,
in this landmark judgment, took cognizance of the exploitation and bonded labor
prevailing in various industries and formulated guidelines for the protection of
workers' rights, highlighting the judiciary's role in social justice and human
rights activism.

In conclusion, judicial activism plays a significant role in ensuring justice,

protecting fundamental rights, and addressing social and policy issues. While it
is necessary in certain situations, there should be a balance between judicial
activism and the principles of democratic governance, separation of powers, and
judicial restraint. The judiciary must exercise caution, accountability, and sound
legal reasoning while employing judicial activism in the judicial process.

Judicial Activism refers to the proactive role played by the judiciary in advancing
justice, protecting fundamental rights, and addressing societal issues, even
beyond the traditional bounds of judicial decision-making. It involves the courts
taking an active stance in shaping public policy and ensuring that the principles
of justice are upheld. While Judicial Activism is often seen as necessary for
social progress and protecting the rights of citizens, it also has its scope, limits,
and potential drawbacks. Let's explore these aspects with relevant case laws:

Scope of Judicial Activism:

1. Protecting Fundamental Rights: Judicial activism enables the courts to

safeguard and expand fundamental rights. In cases like Maneka Gandhi v.
Union of India (1978) and Vishaka v. State of Rajasthan (1997), the Supreme
Court has taken a proactive role in interpreting and protecting fundamental
rights like the right to life and liberty, the right to privacy, and the right to work
in a safe environment.
2. Filling Legislative Gaps: Judicial activism allows the courts to step in
and address legislative gaps when the legislature fails to provide effective
remedies or laws. For example, in the case of MC Mehta v. Union of India (1987),
the Supreme Court ordered the closure of hazardous industries in Delhi to tackle
air pollution.
3. Protecting Environment and Public Interest: The judiciary has played
a significant role in environmental protection through cases like Rural Litigation
and Entitlement Kendra v. State of U.P. (1985) and M.C. Mehta v. Kamal Nath
(1997). These cases highlight the courts' proactive approach in safeguarding
public interest and preserving the environment.

Limits of Judicial Activism:

Separation of Powers: Critics argue that judicial activism can blur the lines
between the judiciary, legislature, and executive, undermining the principle of
separation of powers. The judiciary's interference in policy matters can be seen
as an encroachment on the domain of the elected branches of government.

1. Democratic Accountability: Judicial activism may be criticized for

being undemocratic as unelected judges make decisions that impact public
policy and governance. This can be perceived as undermining the principles of
democratic accountability.
2. Overburdening the Judiciary: An excessively active judiciary can lead
to an overburdening of the court system, affecting its efficiency and timely
disposal of cases.

Necessity of Judicial Activism:

1. Upholding Constitutional Values: Judicial activism is necessary to

ensure that the core values of the constitution, such as equality, liberty, and
justice, are upheld in all spheres of governance and societal interactions.
2. Protecting Marginalized Communities: Activist interventions often play
a crucial role in protecting the rights of marginalized and vulnerable sections of
society who may not have sufficient access to the political process.
3. Correcting Executive and Legislative Failures: In cases where the
executive and legislative branches fail to address pressing issues, judicial
activism can serve as a remedy and impetus for necessary action.

Case Law: Sunil Batra v. Delhi Administration (1978)

In this landmark case, the Supreme Court held that prisoners have fundamental
rights, and the concept of "right to life" includes the right to live with human
dignity even within prison walls. The court's activism in recognizing prisoners'
rights to basic amenities and protection from torture and inhumane treatment
exemplifies how the judiciary expands the scope of fundamental rights to protect
human dignity.
 Overall, judicial activism can be a potent tool for advancing justice and
upholding constitutional values. However, it should be exercised cautiously, with
an understanding of its scope and limitations, to strike a balance between
judicial intervention and the principle of democratic governance. Judicial
activism must ultimately be aimed at serving the larger principles of justice,
equality, and the protection of individual rights, without unduly undermining
the principles of democracy and separation of powers.

8. According to Lord Action, “Power tends to corrupt & absolute

power corrupts absolutely.” Discuss the Doctrine of Judicial
Review in India with the help of various grounds? 05/19, 02931, Or
The Philosophy of Judicial Review is rooted in the principles of the
law of Constitution, wherein the governments authorities must not
do anything which is inconsistent with the fundamental rights.
Briefly explain the concept of judicial review in present scenario in
India? 11/18,

Judicial Activism refers to the proactive role played by the judiciary in advancing
justice, protecting fundamental rights, and addressing societal issues, even
beyond the traditional bounds of judicial decision-making. It involves the courts
taking an active stance in shaping public policy and ensuring that the principles
of justice are upheld. While Judicial Activism is often seen as necessary for
social progress and protecting the rights of citizens, it also has its scope, limits,
and potential drawbacks. Let's explore these aspects with relevant case laws:

Scope of Judicial Activism:

1. Protecting Fundamental Rights: Judicial activism enables the courts to

safeguard and expand fundamental rights. In cases like Maneka Gandhi v.
Union of India (1978) and Vishaka v. State of Rajasthan (1997), the Supreme
Court has taken a proactive role in interpreting and protecting fundamental
rights like the right to life and liberty, the right to privacy, and the right to work
in a safe environment.
2. Filling Legislative Gaps: Judicial activism allows the courts to step in
and address legislative gaps when the legislature fails to provide effective
remedies or laws. For example, in the case of MC Mehta v. Union of India (1987),
the Supreme Court ordered the closure of hazardous industries in Delhi to tackle
air pollution.
3. Protecting Environment and Public Interest: The judiciary has played
a significant role in environmental protection through cases like Rural Litigation
and Entitlement Kendra v. State of U.P. (1985) and M.C. Mehta v. Kamal Nath
(1997). These cases highlight the courts' proactive approach in safeguarding
public interest and preserving the environment.

Limits of Judicial Activism:

1. Separation of Powers: Critics argue that judicial activism can blur the
lines between the judiciary, legislature, and executive, undermining the principle
of separation of powers. The judiciary's interference in policy matters can be
seen as an encroachment on the domain of the elected branches of government.
2. Democratic Accountability: Judicial activism may be criticized for
being undemocratic as unelected judges make decisions that impact public
policy and governance. This can be perceived as undermining the principles of
democratic accountability.
3. Overburdening the Judiciary: An excessively active judiciary can lead
to an overburdening of the court system, affecting its efficiency and timely
disposal of cases.

Necessity of Judicial Activism:

1. Upholding Constitutional Values: Judicial activism is necessary to

ensure that the core values of the constitution, such as equality, liberty, and
justice, are upheld in all spheres of governance and societal interactions.
2. Protecting Marginalized Communities: Activist interventions often play
a crucial role in protecting the rights of marginalized and vulnerable sections of
society who may not have sufficient access to the political process.
3. Correcting Executive and Legislative Failures: In cases where the
executive and legislative branches fail to address pressing issues, judicial
activism can serve as a remedy and impetus for necessary action.

Case Law: Sunil Batra v. Delhi Administration (1978)

In this landmark case, the Supreme Court held that prisoners have fundamental
rights, and the concept of "right to life" includes the right to live with human
dignity even within prison walls. The court's activism in recognizing prisoners'
rights to basic amenities and protection from torture and inhumane treatment
exemplifies how the judiciary expands the scope of fundamental rights to protect
human dignity.

Overall, judicial activism can be a potent tool for advancing justice and
upholding constitutional values. However, it should be exercised cautiously, with
an understanding of its scope and limitations, to strike a balance between
judicial intervention and the principle of democratic governance. Judicial
activism must ultimately be aimed at serving the larger principles of justice,
equality, and the protection of individual rights, without unduly undermining
the principles of democracy and separation of powers.

According to Lord Action, “Power tends to corrupt & absolute power corrupts
absolutely.” Discuss the Doctrine of Judicial Review in India with the help of
various grounds? Or The Philosophy of Judicial Review is rooted in the principles
of the law of Constitution, wherein the governments authorities must not do
anything which is inconsistent with the fundamental rights. Briefly explain the
concept of judicial review in present scenario in India?

The doctrine of Judicial Review in India is a vital component of the constitutional

framework and serves as a mechanism to ensure the supremacy of the
Constitution. It allows the judiciary to review and strike down any law, executive
action, or government decision that is inconsistent with the provisions of the
Constitution.

The concept of judicial review in the present scenario in India

can be understood in the following manner:

1. Supremacy of the Constitution: In India, the Constitution is considered

the supreme law of the land. The doctrine of judicial review upholds the idea
that no law or action can be valid if it violates the provisions of the Constitution,
particularly the fundamental rights enshrined in Part III.
2. Guardian of the Constitution: The judiciary, particularly the Supreme
Court, acts as the guardian of the Constitution and has the authority to
interpret its provisions. Through judicial review, the courts ensure that the
actions of the government and its authorities are in conformity with the
Constitution.
3. Grounds for Judicial Review: There are various grounds on which
judicial review can be exercised in India. These include:

a. Violation of Fundamental Rights: The judiciary reviews laws and actions

that infringe upon fundamental rights guaranteed under the Constitution. For
example, in the case of Kesavananda Bharati v. State of Kerala (1973), the
Supreme Court held that the power of Parliament to amend the Constitution is
not unlimited and cannot be used to destroy its basic structure, including
fundamental rights.

b. Violation of Constitutional Provisions: Judicial review is exercised when

laws or actions contravene specific provisions of the Constitution. The court
examines the constitutionality of such laws and actions and may strike them
down if found inconsistent with the constitutional provisions. For instance, in
the case of S.R. Bommai v. Union of India (1994), the Supreme Court held that
the imposition of President's Rule by the central government without sufficient
grounds violates the federal principles of the Constitution.

c. Ultra Vires Acts: Judicial review is also employed to assess the legality of acts
beyond the authority conferred by law. If an act is found to be ultra vires, i.e.,
beyond the power granted to the authority, it can be declared invalid. In the case
of Association of Democratic Reforms v. Union of India (2002), the Supreme
Court directed that candidates contesting elections must disclose their criminal
antecedents, emphasizing the importance of transparency and accountability.

4. Balancing of Powers: The doctrine of judicial review helps maintain a

balance of power between the legislature, executive, and judiciary. It prevents
abuse of power by any branch of the government and ensures that they operate
within their constitutional limits.
5. Judicial Activism: Judicial review often involves an element of judicial
activism, where the courts take an active role in shaping public policy and
protecting constitutional values. Through their judgments, the courts interpret
the Constitution in a manner that promotes justice, equality, and individual
rights.
In summary, the concept of judicial review in the present scenario in India is
rooted in the principles of constitutional supremacy and the protection of
fundamental rights. The doctrine allows the judiciary to review laws and actions,
ensuring their conformity with the Constitution. It serves as a safeguard against
arbitrary exercise of power and plays a crucial role in upholding the principles of
democracy, equality, and justice.

The doctrine of Judicial Review is a crucial aspect of the Indian legal system and
is rooted in the principles of the Constitution. It empowers the judiciary to review
and invalidate laws, regulations, or executive actions that are found to be
unconstitutional or in violation of fundamental rights. The concept of judicial
review is based on the idea that the government and its authorities must act
within the limits prescribed by the Constitution and cannot take any action that
is inconsistent with fundamental rights.

In India, the doctrine of judicial review is derived from Article 13 of the

Constitution, which declares that any law that contravenes fundamental rights
shall be void. The judiciary has been entrusted with the power to interpret the
Constitution and ensure that laws and actions of the government are in line with
its provisions.

Grounds for Judicial Review in India:

1. Violation of Fundamental Rights: The primary ground for judicial

review in India is the violation of fundamental rights enshrined in Part III of the
Constitution. If a law or action is found to infringe upon these rights, the
judiciary can strike it down as unconstitutional.
2. Lack of Legislative Competence: The judiciary can review laws and
actions to determine whether the legislature had the requisite competence or
authority to enact such laws or take certain actions. If the legislature has
overstepped its jurisdiction, the law or action may be invalidated.
3. Violation of Basic Structure Doctrine: The Supreme Court has held
that certain features of the Constitution, referred to as the "Basic Structure," are
sacrosanct and cannot be amended or abrogated. If any law or amendment is
found to violate the basic structure, it can be declared unconstitutional.
4. Non-Conformity with Directive Principles of State Policy: While
Directive Principles of State Policy are not enforceable in courts, they serve as
guidelines for the government. If a law or action is in direct conflict with these
principles, the courts may consider it in determining its constitutionality.
5. Arbitrariness and Unreasonableness: The courts can review laws and
actions on the grounds of arbitrariness and unreasonableness. If a law is found
to be irrational, discriminatory, or without any intelligible differentia, it may be
struck down.
6. Violation of Natural Justice: The judiciary can review administrative
decisions to ensure that they adhere to the principles of natural justice, such as
the right to be heard, the right to a fair hearing, and the rule against bias.

Present Scenario of Judicial Review in India:

 In the present scenario, the doctrine of judicial review continues to play a vital
role in upholding the supremacy of the Constitution and protecting the rights of
citizens. The judiciary in India has been proactive in exercising its power of
judicial review to strike down laws and actions that are found to be
unconstitutional or in violation of fundamental rights. The courts have been
vigilant in safeguarding the principles of democracy, equality, and justice
enshrined in the Constitution.

Recent judicial decisions have reaffirmed the significance of judicial review in

preserving the rule of law and preventing the abuse of power by the government.
The judiciary's role in protecting individual rights, promoting transparency and
accountability, and ensuring the proper functioning of the constitutional
machinery remains pivotal.

However, judicial review is not without its criticisms and debates. Some argue
that excessive judicial activism may lead to the courts encroaching upon the
domain of the executive and legislature, thus undermining the principle of
separation of powers. There are also concerns about the delays in the judicial
process and the pendency of cases, which can impact the effective exercise of
judicial review.

In conclusion, the doctrine of judicial review is a cornerstone of the Indian legal

system, ensuring that the government and its authorities act within the limits of
the Constitution and uphold the principles of justice and equality. As long as it
is exercised judiciously and with respect for the constitutional framework,
judicial review serves as a vital mechanism for the protection of citizens' rights
and the preservation of democratic values.

Module – III (1 Credit) 3. Judicial Process in India:

Indian debate on the role of judges and on the notion of judicial review. The ‘independence’ of judiciary
and the ‘political’ nature of judicial process. Judicial activism and creativity of the Supreme Court –
the tools and techniques of creativity. Judicial process in pursuit of constitutional goals and values –
new dimensions of judicial activism and structural challenges, Institutional liability of courts and
judicial activism–scope and limits.

9. Critically analyze the Status & Position of National Judicial

Commission in India in the light of principle of independence of
judiciary in contemporary era? 05/19 Or Explain in detail the
political nature of judicial process with special reference to the
status of National Judicial Commission in India? 11/18,

The National Judicial Commission (NJC), also known as the National Judicial
Appointments Commission (NJAC), was proposed as a constitutional amendment
in India with the aim of changing the process of appointing judges to higher
courts. The establishment of the NJC was seen as a significant development in
the context of the political nature of the judicial process in India. However, the
Supreme Court of India declared the NJAC unconstitutional in 2015, upholding
the principle of the independence of the judiciary.
The principle of the independence of the judiciary is a fundamental aspect of the
Indian Constitution. It ensures that the judiciary remains free from external
influences and political pressures, enabling it to uphold the rule of law and
protect the rights and liberties of individuals. The independence of the judiciary
is crucial for maintaining a checks-and-balances system and ensuring justice is
delivered impartially.

The proposed NJC sought to introduce a new mechanism for the appointment of
judges, involving the participation of both the judiciary and the executive. This
move was seen as a departure from the existing collegium system, where judges
had the primary role in appointing judges to higher courts. Proponents of the
NJC argued that it would bring greater transparency and accountability to the
appointment process.

However, critics raised concerns about the potential political nature of the NJC
and its impact on the independence of the judiciary. They argued that involving
the executive in the appointment process could lead to politicization and
compromise the judiciary's autonomy. The fear was that the government, with its
vested interests, might influence the selection of judges, thereby undermining
the impartiality and integrity of the judiciary.

In the case of Supreme Court Advocates-on-Record Association v. Union of India

(2015), the Supreme Court struck down the NJAC Act and the Constitution
(Ninety-Ninth Amendment) Act, 2014. The court ruled that the NJAC violated the
basic structure doctrine, which protects the independence of the judiciary as an
essential feature of the Constitution.

The court's decision was based on the argument that the NJAC compromised the
independence of the judiciary by giving excessive power to the executive in the
appointment process. The court held that judicial primacy in appointments was
necessary to ensure that only the most deserving and competent individuals
were selected as judges.

The ruling reaffirmed the importance of maintaining the independence of the

judiciary and upholding the principles of the Constitution. It underscored the
need to separate the judiciary from political influences and ensure that judicial
appointments are made solely on the basis of merit and suitability.

In conclusion, the status and position of the National Judicial Commission in

India were critically examined in the light of the principle of the independence of
the judiciary. The Supreme Court's ruling declaring the NJAC unconstitutional
highlighted the significance of safeguarding the judiciary's autonomy and
maintaining its independence from political interference. The decision reinforced
the role of the judiciary as a guardian of the Constitution and protector of
individual rights.

The status and position of the National Judicial Commission (NJC) in India have
been a subject of significant debate and controversy, primarily due to its
implications on the principle of independence of the judiciary. The NJC was
proposed as a constitutional amendment in 2014 to replace the existing
collegium system for the appointment of judges to higher courts. However, in
2015, the Supreme Court declared the NJC unconstitutional in a landmark
judgment, upholding the principle of judicial independence.

The concept of the independence of the judiciary is enshrined in the Indian

Constitution and is essential to ensure that the judiciary functions impartially
and without any interference from the executive or legislative branches of the
government. The principle of judicial independence is considered crucial to
uphold the rule of law, protect fundamental rights, and maintain a balance of
power between the three branches of government.

The proposal for the NJC sought to include the executive and legislative
branches in the process of appointing judges to higher courts, thereby altering
the traditional system of judicial appointments. Under the NJC, the Chief Justice
of India (CJI) would have been one of the six members of the commission.
However, the executive would have had a substantial role in the appointment
process, which raised concerns about potential political interference in the
judiciary.

Critics argued that the NJC could compromise the independence

of the judiciary for several reasons:

1. Political Influence: With the executive and legislative branches having a

say in the appointment of judges, there was a fear that political considerations
might influence judicial appointments, undermining the impartiality and
integrity of the judiciary.
2. Checks and Balances: The existing collegium system, where senior
judges of the Supreme Court recommend appointments, was designed to provide
a checks-and-balances mechanism to ensure that the judiciary remains
independent from the executive and legislative branches.
3. Threat to Judicial Autonomy: The NJC could have potentially led to a
situation where the executive could manipulate the composition of the judiciary,
affecting the court's ability to act as a check on the government's actions.
4. Judicial Accountability: While the NJC was proposed to introduce
accountability in the appointment process, critics argued that it could
compromise the judiciary's ability to hold the executive accountable for any
violations of the Constitution or abuse of power.

In 2015, the Supreme Court, in the case of Supreme Court Advocates-on-Record

Association v. Union of India, struck down the NJC Act and the constitutional
amendment that sought to establish the NJC. The court held that the NJC
violated the basic structure of the Constitution, which includes the
independence of the judiciary.

The court upheld the collegium system, which has been in practice since the
early 1990s. Under the collegium system, a group of senior judges of the
Supreme Court recommends candidates for appointment to higher judiciary
positions, including the Supreme Court and High Courts.
 In conclusion, the status and position of the National Judicial Commission in
India need to be critically analyzed in the context of the principle of
independence of the judiciary. The Supreme Court's decision to strike down the
NJC and uphold the collegium system was a significant step in preserving the
judiciary's independence and ensuring that the appointment of judges remains
free from political interference. The independence of the judiciary is a
cornerstone of the Indian democracy, and any attempts to compromise it must
be carefully examined and addressed to safeguard the constitutional principles
and democratic values.

10. Discuss Institutional Liabilities of Courts of Law? 03/12,03/14,

282-83 Or
Institutional liability of the Courts: Scope & Limitations 3
Independence of Judiciary 3 170-95

Institutional liabilities of courts of law refer to the responsibilities and

obligations that the judiciary, as an institution, must uphold in the
administration of justice. These liabilities are essential for maintaining the
integrity, credibility, and effectiveness of the judicial system.

Here are some key institutional liabilities of courts of law:

1. Impartiality: Courts have a fundamental duty to remain impartial and

neutral in their decision-making process. They must ensure that all parties
involved in a case are treated fairly and equally, without any bias or prejudice.
Impartiality is crucial for upholding the principles of justice and ensuring public
trust in the judiciary.
2. Independence: Courts must be independent from external influences,
such as political pressure or interference. Judicial independence is a cornerstone
of the rule of law, and it ensures that judges can make decisions based solely on
the law and evidence presented before them, without fear of reprisal or
favoritism.
3. Fair and Transparent Proceedings: Courts are responsible for
conducting proceedings in a fair and transparent manner. This includes
providing an opportunity for all parties to present their case, ensuring due
process, and maintaining transparency in the judicial process. Fair and
transparent proceedings help promote public confidence in the judiciary and
ensure that justice is served.
4. Timely Disposal of Cases: Courts have a duty to handle cases efficiently
and ensure timely disposal. Delay in the adjudication of cases can undermine
public trust in the judicial system and deny justice to litigants. Courts should
strive to expedite proceedings while maintaining the quality and thoroughness of
their judgments.
5. Accountability: While judicial independence is crucial, courts also have
a responsibility to be accountable for their actions. This accountability can be in
the form of judicial review, adherence to ethical standards, and addressing
complaints against judges or court personnel. Accountability helps maintain
public confidence in the judiciary and ensures that judges uphold the highest
standards of integrity and professionalism.
6. Clarity and Consistency in Judgments: Courts should strive to provide
clear and consistent judgments that interpret and apply the law accurately.
Consistency in judicial decisions helps establish a predictable legal framework,
promotes fairness, and ensures equal treatment under the law.
7. Access to Justice: Courts have a duty to ensure access to justice for all
individuals, irrespective of their socio-economic status, background, or other
factors. This includes providing mechanisms for legal aid, simplifying legal
procedures, and removing barriers that prevent individuals from seeking redress.
8. Continuous Professional Development: Judges and court personnel
should engage in continuous professional development to enhance their
knowledge, skills, and understanding of the law. This includes staying updated
with legal developments, attending training programs, and participating in
judicial education initiatives.
9. Judicial Ethics: Upholding high ethical standards is crucial for
maintaining the integrity of the judiciary. Judges must act with integrity,
honesty, and impartiality, avoiding conflicts of interest and ensuring the
confidentiality of proceedings.

In conclusion, the institutional liabilities of courts of law encompass various

responsibilities that are vital for the proper functioning of the judicial system.
Upholding these liabilities ensures the integrity, impartiality, and effectiveness of
the judiciary, and ultimately contributes to the administration of justice and the
protection of individual rights.

Institutional liabilities of courts of law refer to the responsibilities and

obligations that the judiciary as an institution must fulfill in the legal system.
These liabilities are essential for maintaining the integrity, fairness, and
effectiveness of the judiciary in upholding the rule of law and dispensing justice.

Some of the key institutional liabilities of courts of law include:

1. Fair and Impartial Adjudication: Courts have a fundamental duty to

ensure fair and impartial adjudication of cases. Judges must be unbiased and
neutral in their decision-making process, free from any external influence or
pressure. The judiciary should be seen as an independent and reliable
institution that treats all litigants equally before the law.
2. Timely Disposition of Cases: The judiciary is responsible for ensuring
timely and efficient disposal of cases. Delay in justice delivery can erode public
confidence in the legal system. Courts need to adopt modern case management
techniques and address the issue of pending cases to maintain the effectiveness
of the judicial process.
3. Access to Justice: The judiciary must ensure that justice is accessible
to all, regardless of social, economic, or political status. Special attention should
be given to the needs of marginalized and disadvantaged groups to guarantee
equal protection under the law.
4. Transparency and Accountability: Courts must be transparent in their
proceedings and decisions. The reasoning behind judgments should be clear and
publicly available. The judiciary also needs to be accountable for its actions, and
 mechanisms for addressing complaints and grievances against judicial officers
should be in place.
5. Protection of Human Rights: Courts have a vital role in protecting and
upholding human rights. They should interpret laws and the Constitution in a
manner that safeguards individual liberties and ensures justice is served in
cases involving human rights violations.
6. Interpretation of Laws: One of the primary functions of the judiciary is
to interpret laws and the Constitution. Courts must exercise this power
responsibly and consistently, ensuring that the rule of law is upheld and the
principles of justice are preserved.
7. Role in Constitutional Adjudication: The judiciary plays a crucial role
in constitutional adjudication, ensuring that laws and executive actions conform
to the Constitution. It is responsible for safeguarding the constitutional
principles and protecting citizens' fundamental rights.
8. Judicial Training and Development: Courts should invest in
continuous education and training of judicial officers to enhance their legal
knowledge, judicial skills, and sensitivity towards social issues.
9. Public Confidence and Reputation: The judiciary must maintain public
confidence and trust in its functioning. A strong reputation for impartiality,
integrity, and competence is essential for the credibility and effectiveness of the
courts.
10. Public Engagement and Outreach: Courts should engage with the
public and stakeholders to create awareness about the legal system, provide
information about legal rights, and seek feedback to improve the judicial
process.

In conclusion, the institutional liabilities of courts of law are crucial for

ensuring the proper functioning of the judicial system and upholding the rule of
law. Courts must maintain independence, impartiality, and transparency while
delivering timely justice and protecting human rights. Upholding these
institutional liabilities contributes to building public trust and confidence in the
legal system, ultimately strengthening the foundation of a just and democratic
society.

Module – IV (1 Credit) 4. The Concept of Justice:

The Concept of justice or Dharma in Indian thought Dharma as the foundation of legal order in Indian
thought. The concept and various theories of justice in western thought. Various theoretical bases of
justice: the liberal contractual tradition, the liberal utilitarian tradition and the liberal moral tradition.
5. Relation between Law and Justice:
Equivalence Theories – Justice as nothing more than the positive law of the stronger class Dependency
theories – For its realization justice depends on law, but justice is not the same as law.
The independence of justice theories – means to end relationship of law and justice – The relationship
in the context of the Indian constitutional ordering. Analysis of selected cases of the Supreme Court
where the judicial process can be seen as influenced by theories of justice.

11. What is ‘Dharma’? Discuss its impact on Indian Legal System as

the foundation of Legal ordering in India? 04/14, 64-85 Or Briefly
explain the concept of ‘Dharma’ as a foundation of legal ordering in
Indian thought? Perspective? 05/16, Or Briefly explain the concept of
‘Dharma’ as a foundation of legal ordering in Indian thought in the
light of legislative & judicial? 11/17, Or Explain the concept of
Dharma in Indian thought. How far the notion of Dharma reflects in
Indian Legal System? 05/18, Or Write an essay on ‘Dharma as
foundation of justice in India’. How far Dharma reflected in India
legal system? Justify your answer with the help of legislative and
judicial perspective? 05/19 Or Explain in detail about the “Concept
of Dharma” in India for attaining justice. QP code 12237 Or Define
the Concept of Dharma? Discuss various aspects of Dharma in
Indian thought with the help of examples? 26906
Explain in detail the Concept of Dharma & Concept of Justice in
Indian thoughts? 05/13,

Dharma in Indian thought 3 64-85

In Indian thought, the concept of "Dharma" holds profound significance as the

foundation of legal ordering and the pursuit of justice. Dharma is a complex and
multifaceted concept that encompasses moral, ethical, social, and cosmic order.
It refers to the natural laws and principles that govern the universe and guide
individuals in leading righteous lives.

Dharma is derived from the Sanskrit root "dhr," which means "to uphold" or "to
sustain." It represents the inherent order and harmony that underlies the
functioning of the cosmos. In the context of the legal system, Dharma serves as a
guiding principle for individuals, communities, and the state to establish a just
and harmonious society.

The concept of Dharma has had a profound impact on the Indian legal system,
influencing both legislative and judicial perspectives.

Here are some key aspects of Dharma in Indian thought and its
reflection in the Indian legal system:

1. Ethical and Moral Principles: Dharma emphasizes ethical and moral

values, such as truth, justice, fairness, compassion, and righteousness. These
principles form the basis of laws and legal systems in India, guiding legislators
and judges in their pursuit of justice.
2. Duty and Responsibility: Dharma emphasizes the importance of
fulfilling one's duty and responsibilities in various roles and relationships. In the
legal system, this translates into the responsibilities of individuals, officials, and
institutions to uphold the rule of law, protect rights, and ensure justice.
3. Social Order and Harmony: Dharma promotes the establishment of a
just and harmonious social order. The Indian legal system seeks to maintain
social cohesion and harmony by addressing disputes, resolving conflicts, and
ensuring the well-being of individuals and communities.
4. Customary Law: Dharma recognizes the significance of customary
practices and traditions in shaping legal norms. Customary laws, which vary
 across different regions and communities in India, are recognized and respected
within the legal framework.
5. Legal Pluralism: The concept of Dharma accommodates legal pluralism,
allowing for the coexistence of different legal systems and traditions. This is
reflected in India's diverse legal landscape, where personal laws based on
religious and cultural practices are recognized alongside statutory laws.
6. Judicial Interpretation: The judiciary plays a crucial role in interpreting
and applying Dharma in the context of contemporary legal issues. Courts often
draw upon Dharma principles to arrive at just decisions, especially in cases
where statutory laws are ambiguous or do not provide adequate guidance.
7. Balance between Rights and Duties: Dharma emphasizes a balanced
approach between individual rights and societal duties. The Indian legal system
recognizes fundamental rights while also emphasizing the responsibilities and
duties of individuals towards society.
8. Evolution and Adaptation: Dharma is not static but evolves with time
and changing societal needs. Similarly, the Indian legal system has undergone
changes and adaptations to address the challenges of a modern, dynamic society
while upholding the principles of Dharma.

It is important to note that while the concept of Dharma influences the Indian
legal system, it is not the sole basis for lawmaking or judicial decision-making.
The Indian legal system also relies on legislation, precedents, constitutional
principles, and international conventions. However, the principles of Dharma
continue to inform and guide legal ordering in India, reflecting the deep-rooted
connection between law, morality, and justice in Indian thought.

12. Discuss the relevant cases of Supreme Court where it can be seen
that the Judicial Process is influenced by Theories of Justice?
09/13, 38-48 Or
Discuss in detail, the relation between Law & Justice, through
different theories of justice? 09/13,04/14,05/16, 86-89 Or Discuss
the Inter relationship between Law & Justice with the help of
various judicial decisions where judicial process can be seen as
influenced by theories of justice? 11/17,05/18,11/18, Or Explain
in details on “The Concept and various theories of justice in the
Western thought”? 64-85, 26906 Or
According to Benjamin Cardozo “the final cause of law is the welfare
of the society’. Discuss the relationship between Law & Justice in
the light of above statement? 05/17, Or According to Benjamin
Cardozo “Law is never is but is always about to be’. Justify the
statement in the view of Role of Judges in the process of Judicial Law
making in India? 11/17, Or According to Benjamin Cardozo “It is
when the colours do not match, when references in the index fails,
when there is no decisive precedent, then the serious business of the
Judges begins..” Discuss in detail the nature & scope of Judicial
Process in the light of above statement? 11/18
 Independence of Judiciary 3 170-95
Inter-relationships between Law & Justice 2 86-88
Theories of Justice 1

The relationship between law and justice is a complex and multifaceted topic that
has been explored by legal scholars and philosophers throughout history. In this
response, I will discuss the concept of justice and its various theories in Western
thought, as well as the influence of these theories on the judicial process.

1. Concept of Justice: Justice can be understood as the principle of fairness and

the just distribution of rights and resources within a society. It is concerned
with ensuring that individuals are treated equitably and that their rights are
protected. However, different theories of justice offer varying perspectives on
how this principle should be applied.
2. Theories of Justice: a. Utilitarianism: This theory, associated with
philosophers like Jeremy Bentham and John Stuart Mill, posits that justice is
achieved when actions or laws produce the greatest amount of happiness for
the greatest number of people. It prioritizes the overall welfare or utility of
society.

b. Retributive Justice: Retributive justice, rooted in the concept of punishment,

focuses on restoring balance and fairness through the appropriate infliction of
penalties for wrongdoing. It aims to ensure that offenders suffer proportional
consequences for their actions.

c. Distributive Justice: Distributive justice deals with the fair allocation of

resources, benefits, and burdens in society. It seeks to address social and economic
inequalities by distributing goods and opportunities in a way that is considered just
and equitable.

d. Restorative Justice: This theory emphasizes healing and reconciliation, focusing

on repairing the harm caused by a crime or wrongdoing. It involves bringing together
offenders, victims, and the community to address the underlying issues and promote
mutual understanding.

e. Procedural Justice: Procedural justice emphasizes fair processes and procedures

in the legal system. It asserts that justice is served when individuals have a voice,
receive fair treatment, and have their rights protected throughout legal proceedings.

3. Influence on the Judicial Process: The theories of justice mentioned above

can influence the judicial process in several ways:

a. Legal Interpretation: Judges may employ different theories of justice to interpret

laws and determine their application in specific cases. For example, a judge with a
utilitarian perspective may prioritize the overall social welfare, while a judge
influenced by distributive justice may focus on addressing inequalities.
b. Decision-Making: Judges' understanding of justice can shape their decisions
regarding guilt, punishment, and remedies. The theories they adhere to may guide
their reasoning and the factors they consider when balancing competing interests.

c. Precedents: Judicial decisions based on theories of justice can establish

precedents that shape future interpretations of the law. These precedents contribute
to the development of legal principles that align with particular theories of justice.

d. Legal Reform: Theories of justice can also inform discussions and debates
surrounding legal reform. When societal values change, courts may be influenced by
evolving theories of justice, leading to changes in legal doctrines and principles.

4. Benjamin Cardozo's Views: Benjamin Cardozo, a prominent American judge,

made insightful observations on the relationship between law and justice:

a. "The final cause of law is the welfare of society": Cardozo emphasized that the
purpose of the law is to promote the well-being and welfare of society as a whole. This
suggests that justice should be a central consideration in the creation and
application of laws.

b. "Law is never is but is always about to be": Cardozo's statement reflects the
dynamic nature of law. Laws are not fixed or stagnant but are subject to
interpretation and evolution. Judges play a crucial role in shaping and adapting the
law to meet the needs of society, including considerations of justice.

c. "When the colors do not match... the serious business of the Judges begins":
This statement highlights the challenges judges face when confronted with legal
cases that lack clear precedents or established rules. In such situations, judges must
engage in a comprehensive analysis of legal principles, societal values, and theories
of justice to arrive at a just decision.

In conclusion, the relationship between law and justice is a nuanced and intricate
one. Various theories of justice inform the judicial process by influencing legal
interpretation, decision-making, precedents, and legal reforms. Judges play a crucial
role in considering the welfare of society and applying theories of justice to promote
fairness and equity in their decisions. Benjamin Cardozo's statements shed light on
the dynamic and challenging nature of the judicial process, emphasizing the
importance of justice in the law.

The relationship between law and justice is a complex and evolving one, and it has
been a subject of philosophical and legal discourse for centuries. Different theories of
justice have shaped and influenced the judicial process in various ways. Let's explore
this relationship through various theories of justice and relevant cases from Supreme
Court.

1. Utilitarian Theory of Justice: According to this theory, an action is just if it

promotes the greatest overall happiness for the greatest number of people. In
the context of law, this means that laws should be designed to maximize
societal welfare. Supreme Court decisions often consider the utilitarian
 consequences of their rulings. For example, in Brown v. Board of Education
(1954), the Court ruled that racial segregation in public schools was
unconstitutional because it perpetuated inequalities and denied equal
educational opportunities, leading to an unjust society.
2. Retributive Theory of Justice: This theory emphasizes proportionality and
just punishment for wrongdoing. It asserts that individuals who violate the law
should receive fair and appropriate punishment. The Supreme Court, in Gregg
v. Georgia (1976), upheld the constitutionality of the death penalty, stating that
it served as a proportionate punishment for certain heinous crimes, and thus,
it was in line with the retributive theory of justice.
3. Restorative Justice: This theory focuses on repairing harm caused by
criminal behavior rather than solely punishing the offender. It emphasizes
reconciliation and rehabilitation. Though not a specific case, the concept of
restorative justice has influenced alternative dispute resolution mechanisms,
diversion programs, and juvenile justice systems in various jurisdictions.
4. Distributive Justice: This theory concerns the fair distribution of resources,
opportunities, and benefits in society. In the legal context, it addresses issues
of social and economic inequality. The Supreme Court, in cases like Brown v.
Board of Education and Grutter v. Bollinger (2003), considered the concept of
distributive justice by ruling against discriminatory admissions practices in
universities.
5. Procedural Justice: This theory emphasizes fair and impartial processes in the
legal system. It focuses on ensuring that individuals have equal access to
justice and are treated fairly during legal proceedings. The concept of due
process enshrined in the U.S. Constitution reflects the importance of
procedural justice.

Benjamin Cardozo's Views: Benjamin Cardozo, a prominent jurist, highlighted the

dynamic nature of law and the role of judges in shaping it. He recognized that judges
play a crucial role in adapting the law to changing circumstances and ensuring
justice in unique and ambiguous cases.

 Regarding "the final cause of law is the welfare of society," Cardozo highlights
that laws should ultimately serve the greater good and the well-being of the
community. Judges must consider societal implications when interpreting and
applying the law.
 The statement "law is never is but is always about to be" suggests that law is
not static but constantly evolving. Judges must interpret and apply existing
laws in a way that aligns with the needs of the time and advances justice.
 "When the colors do not match, when references in the index fail, when there is
no decisive precedent, then the serious business of the judges begins"
emphasizes that in difficult and novel cases, judges must use their reasoning,
ethical principles, and a sense of justice to arrive at just decisions.

In conclusion, the relationship between law and justice is intricate and influenced by
various theories of justice. The Supreme Court has often shown its understanding of
these theories through landmark decisions that have shaped the legal landscape.
Judges, as the interpreters and appliers of the law, play a significant role in ensuring
that justice is served, even in the face of uncertainty and novel circumstances. The
judicial process is an ongoing quest for fairness and social welfare, reflecting the
evolving needs and values of society.

13. Logic, History, Customs & Accepted standard of right conduct

are the Forces, which shape the Process of Law. Illustrate with
Examples? 05/13,QP code 12237/26906
Role of Customs & Traditions in Justice 1
Theoretical bases of Justice are the Liberal and Moral Traditions 1

Certainly! Logic, history, customs, and accepted standards of right conduct are
influential forces that shape the process of law. Here are some examples illustrating
how these factors come into play:

1. Logic: Logic refers to reasoning and rationality in the legal process. It involves
the application of logical principles and coherent arguments to arrive at just
and consistent outcomes. For instance, in cases involving contracts, courts use
logical reasoning to interpret the terms and intentions of the parties involved.
They analyze the logical coherence of the arguments presented by both sides to
determine the legal rights and obligations of the parties.
2. History: History plays a vital role in shaping the law by establishing
precedents and legal traditions. Precedents are previous court decisions that
guide the interpretation and application of the law in subsequent cases. For
example, the landmark case of Roe v. Wade (1973) established a precedent in
the United States that protects a woman's right to choose to have an abortion.
The historical context and the legal reasoning employed in that case influenced
subsequent decisions regarding reproductive rights.
3. Customs: Customs refer to established practices and traditions within a
society. They reflect the collective values and expectations of the community
and can influence the development and interpretation of laws. For instance,
common law jurisdictions often rely on customary practices and long-standing
traditions to determine legal rights and duties. Customary international law,
derived from consistent state practices, also plays a significant role in shaping
international legal norms.
4. Accepted Standards of Right Conduct: Accepted standards of right conduct
encompass ethical principles, moral values, and societal expectations. These
standards guide the formulation and implementation of laws to promote
fairness and justice. For example, laws prohibiting theft and assault are rooted
in the widely accepted standard that it is wrong to harm others or take their
property without permission.

These forces are interrelated and interact with each other in shaping the process of
law. Logical reasoning is used to interpret and apply legal principles, while historical
precedents provide a foundation for legal decision-making. Customs and accepted
standards of right conduct inform the development of laws that reflect societal values
and expectations.

It's important to note that these forces are not static. They evolve over time as society
changes, new challenges emerge, and legal systems adapt to meet the needs of their
respective communities. The dynamic interplay of logic, history, customs, and
accepted standards of right conduct ensures that the law remains responsive and
relevant to the ever-changing social, economic, and cultural contexts in which it
operates.

Let's illustrate how logic, history, customs, and accepted standards of right conduct
shape the process of law with some simple examples:

1. Logic: Logic is the process of reasoning and rational thinking that guides the
formulation and interpretation of laws. Legal decisions are often based on
sound logic and the application of principles. For instance, in a contract
dispute case, if one party can provide clear evidence that the other party
breached the terms of the contract, the logical conclusion would be to enforce
the contract and provide appropriate remedies.
2. History: Legal systems are often influenced by historical events, precedents,
and practices. Past decisions and legal traditions play a vital role in shaping
current laws. For example, in common law systems, previous court rulings
serve as precedents that guide judges in similar cases. Historical context can
also affect the interpretation and application of laws. For instance, when
determining property rights in territories with complex historical ownership
claims, past agreements and treaties may come into play.
3. Customs: Customs are long-established practices and traditions within a
particular society or community. They can influence the development of laws,
especially in areas where there might be a lack of specific legislation. For
instance, in some rural communities, certain customary practices related to
land usage or dispute resolution might be recognized and incorporated into the
legal system.
4. Accepted Standards of Right Conduct: Societal norms and values shape the
standards of right conduct that guide the creation and enforcement of laws.
For example, in many countries, there are laws against theft, murder, and
other criminal acts because society generally accepts these acts as morally
wrong. These accepted standards of right conduct form the basis of criminal
laws and their punishments.

Examples:

 Logic: In a personal injury case, the logic applied by the court might involve
examining the cause-and-effect relationship between the defendant's actions
and the plaintiff's injuries. If the evidence shows that the defendant's
negligence directly led to the plaintiff's harm, the court would logically hold the
defendant liable for damages.
 History: The doctrine of stare decisis (adhering to previous court decisions) is
an example of how history influences the law. If a court has previously ruled on
a particular legal issue and set a precedent, subsequent courts will often follow
that decision to maintain consistency in the legal system.
 Customs: In some indigenous communities, traditional customs and practices
related to land usage or natural resources might be considered in legal
disputes concerning those areas. Courts may take into account the customary
practices followed by the community when deciding on land rights.
  Accepted Standards of Right Conduct: The prohibition of driving under the
influence (DUI) is an example of a law that reflects accepted standards of right
conduct. Society widely recognizes that drunk driving poses a significant risk
to public safety, leading to the enactment of laws and penalties to deter such
behavior.

In conclusion, the forces of logic, history, customs, and accepted standards of right
conduct play essential roles in shaping the process of law. Legal decisions are often
based on rational thinking, influenced by past events and practices, and aligned with
societal norms and values. These elements work together to ensure a fair and just
legal system that reflects the needs and values of the community it serves.

14. Discuss the Role of Supreme Court in the development of goals &
values enshrined in the CI? 10/16, 38-47 & 239-277 Or

The Supreme Court plays a significant role in the development and interpretation of
the goals and values enshrined in the Constitution of a country. Here are some key
points to understand the Court's role:

1. Interpreting the Constitution: The Supreme Court has the authority to

interpret the provisions of the Constitution. This power allows the Court to
define the meaning and scope of various constitutional provisions, including
the fundamental goals and values embedded in the Constitution.
2. Protecting Constitutional Rights: One of the primary roles of the Supreme
Court is to safeguard constitutional rights and ensure that they are upheld.
The Court hears cases that involve the violation or infringement of
constitutional rights and makes decisions that protect and preserve those
rights.
3. Establishing Precedents: Supreme Court decisions create legal precedents
that guide future cases. When the Court interprets the Constitution and makes
rulings on specific legal issues, these decisions become binding on lower courts
and shape the direction of the law. Precedents established by the Court
contribute to the development of the goals and values enshrined in the
Constitution.
4. Balancing Conflicting Interests: The Supreme Court often deals with cases
that involve conflicting rights or interests. In such instances, the Court's role is
to strike a balance and ensure that the Constitution's goals and values are
upheld while considering the specific circumstances of the case. This requires
the Court to carefully analyze and weigh different interests, sometimes through
a process of constitutional balancing.
5. Judicial Review: The power of judicial review allows the Supreme Court to
review the constitutionality of laws, executive actions, and government policies.
By assessing whether these actions align with the goals and values of the
Constitution, the Court plays a crucial role in upholding the constitutional
framework and maintaining the rule of law.
6. Evolution of Constitutional Interpretation: Over time, the Supreme Court's
interpretation of the Constitution can evolve and adapt to changing societal
needs and values. The Court's decisions contribute to the development of
 constitutional jurisprudence, shaping the understanding of the Constitution's
goals and values in light of contemporary issues.
7. Public Confidence and Legitimacy: The Supreme Court's decisions regarding
constitutional goals and values have a significant impact on public confidence
in the legal system and the legitimacy of the government. By ensuring that
constitutional principles are upheld, the Court reinforces the belief that the
government is operating within the boundaries set by the Constitution.

In summary, the Supreme Court plays a crucial role in developing and protecting the
goals and values enshrined in the Constitution. Through its power to interpret the
Constitution, protect rights, establish precedents, balance conflicting interests,
engage in judicial review, evolve constitutional interpretation, and enhance public
confidence, the Court helps shape the understanding and application of
constitutional principles in society.

In this context, "CI" likely refers to the Constitution of a country. So, let's discuss the
role of the Supreme Court in the development of goals and values enshrined in the
Constitution in simple language:

The Supreme Court plays a crucial role in interpreting and safeguarding the goals
and values enshrined in the Constitution of a country. Here's how:

1. Interpretation of the Constitution: The Constitution often contains broad

principles and fundamental rights that require interpretation to apply to
specific cases. The Supreme Court acts as the final authority in interpreting
the Constitution and determining its meaning and scope. Through its
decisions, the Court clarifies the intentions of the framers and ensures that
constitutional principles are applied consistently and effectively.
2. Defending Fundamental Rights: One of the primary roles of the Supreme
Court is to protect and uphold the fundamental rights guaranteed by the
Constitution. These rights, such as freedom of speech, right to equality, and
right to life, are essential for safeguarding individual liberties. The Court
reviews laws and government actions to ensure they do not violate these
fundamental rights.
3. Promoting Constitutional Values: The Constitution often embodies certain
core values, such as justice, equality, and democracy. The Supreme Court acts
as a custodian of these values and uses its powers to promote and strengthen
them in society. Through landmark judgments, the Court sets precedents that
influence public policy and advance constitutional values.
4. Checking Executive and Legislative Actions: The Supreme Court serves as a
check on the actions of the executive and legislative branches of government. If
any government action is deemed unconstitutional, the Court can strike it
down, ensuring that the government operates within the limits set by the
Constitution.
5. Adapting to Changing Times: Societies evolve, and new challenges emerge
over time. The Supreme Court has the responsibility of interpreting the
Constitution in light of contemporary issues and changing circumstances.
Through progressive interpretations, the Court ensures that the Constitution
remains relevant and responsive to the needs of the people.
 6. Settling Constitutional Disputes: In cases of constitutional conflicts or
disputes between different branches of government, the Supreme Court acts as
an arbiter, providing a final resolution. This helps maintain the balance of
power and stability in the government.
7. Expanding Rights and Inclusivity: Over the years, the Supreme Court has
expanded the scope of fundamental rights to include marginalized groups and
protect their interests. This has led to increased inclusivity and social progress.

In conclusion, the Supreme Court plays a critical role in the development of goals
and values enshrined in the Constitution. By interpreting the Constitution, defending
fundamental rights, promoting constitutional values, and adapting to changing
times, the Court ensures that the Constitution remains a living document that guides
the nation and protects the rights and liberties of its citizens.

15. According to Blackstone, ‘Judges are living oracle of law’. Discuss

the concept of Judicial Process with special references to Cordozo’s
view on Judicial Process? 05/19,

According to Blackstone, the concept of judges being the "living oracle of law" means
that judges have the authority and responsibility to interpret and apply the law. Their
role is crucial in the judicial process. Let's discuss the concept of the judicial process,
with special references to Benjamin Cardozo's views, in simple language:

1. Judicial Process: The judicial process refers to the system through which legal
disputes are resolved by judges in a court of law. It involves various stages,
including the filing of a lawsuit, presenting evidence, legal arguments, and the
judge's decision.
2. Interpretation of the Law: One of the key aspects of the judicial process is the
interpretation of the law. Judges have the task of interpreting legal statutes,
constitutional provisions, and precedents to determine their application in
specific cases. They analyze the language of the law, its historical context, and
its purpose to arrive at a just and fair decision.
3. Application of Precedents: Precedents are previous court decisions that serve
as guidelines for judges when deciding similar cases. In the judicial process,
judges consider precedents relevant to the case at hand and apply their
reasoning to reach a decision consistent with past rulings.
4. Cardozo's View on Judicial Process: Benjamin Cardozo, a renowned jurist,
emphasized the role of judges in shaping the law and the judicial process. His
views shed light on the nature and scope of the judicial process:
o Dynamic Nature of Law: Cardozo highlighted that the law is not static
but constantly evolving. Judges must adapt the law to changing
circumstances, societal values, and new legal challenges. They play a
significant role in the development and evolution of legal principles.
o Filling Gaps in the Law: Cardozo acknowledged that judges encounter
situations where existing laws may not provide clear guidance. In such
cases, judges must use their reasoning, ethical principles, and a sense of
justice to fill the gaps in the law and arrive at just decisions. They have
the responsibility to address novel and ambiguous cases.
 o Balancing Conflicting Interests: Judges often face cases where there
are conflicting interests or legal principles. Cardozo believed that judges
must carefully weigh these conflicting factors and strike a balance that
promotes justice and fairness. They need to consider the broader societal
implications of their decisions.
o Role of Judges in Lawmaking: Cardozo recognized that judges play a
role in making and shaping the law through their interpretations and
decisions. While they are bound by existing legal principles, they also
have the power to influence the development of the law by setting
precedents and establishing new legal standards.

In summary, the concept of the judicial process involves the interpretation and
application of the law by judges. They are responsible for analyzing statutes, applying
precedents, and filling gaps in the law. Benjamin Cardozo's views highlight the
dynamic nature of the law, the role of judges in shaping it, and the need to balance
conflicting interests in the pursuit of justice. Judges act as key participants in the
judicial process, playing a vital role in ensuring fairness, consistency, and the
evolution of legal principles.

According to Blackstone, a famous legal scholar, "Judges are the living oracles of
law," which means that judges have the authority and responsibility to interpret and
apply the law in specific cases. Let's discuss the concept of the judicial process with
special reference to Benjamin Cardozo's views on the judicial process:

Concept of Judicial Process:

The judicial process refers to the system through which legal disputes are resolved in
a court of law. It involves the application of laws, precedents, and legal principles to
specific cases to arrive at just and fair decisions. Judges play a central role in this
process as they have the authority to interpret the law, resolve disputes, and
establish legal precedents.

Cardozo's Views on Judicial Process:

Benjamin Cardozo, a renowned American jurist, had significant insights into the
nature and scope of the judicial process. Some of his key views are:

1. Dynamic Nature of Law: Cardozo believed that the law is not fixed or rigid;
rather, it is constantly evolving to meet the changing needs of society. Judges,
as the interpreters of the law, must adapt its application to the complexities of
real-life situations.
2. Judicial Creativity: He acknowledged that in cases where existing laws and
precedents are not directly applicable, judges must use their creativity and
judgment to arrive at just decisions. They must consider the principles of
justice, equity, and public policy to fill gaps in the law.
3. Role of Precedents: While recognizing the importance of legal precedents,
Cardozo also emphasized that judges should not be bound by them in every
situation. He believed that precedents should guide judicial decisions, but not
restrict judges from applying the law differently in new and unique cases.
 4. Balancing Conflicting Interests: Cardozo understood that the judicial process
often involves balancing conflicting interests, rights, and values. Judges must
carefully weigh competing arguments to reach a fair and equitable resolution.
5. Decisive Cases: According to Cardozo, judges' most critical work is done in
cases where legal authorities, precedents, and rules do not provide clear
guidance. In such situations, judges must draw upon their wisdom,
experience, and a sense of justice to reach a just decision.

Conclusion:

In summary, the concept of the judicial process involves the application and
interpretation of the law by judges to resolve legal disputes. Cardozo's views
emphasize the dynamic nature of law, the role of judicial creativity, the importance of
precedent while allowing room for judicial discretion, and the significance of resolving
complex cases where existing legal rules may be insufficient. The process of
adjudication requires judges to uphold justice and equity while considering the
changing needs and values of society.

16. Do you think that the procedure of appointment of Judges of SC &

High Court under CI ensures the Independence of Judiciary? Justify
your answer in the light of SC Advocate on Record Association Vs
UI, 1994 case? 05/18,170-195

The procedure for the appointment of judges of the Supreme Court and High Courts
under the Constitution of India is designed to ensure the independence of the
judiciary. However, there have been debates and discussions on whether the existing
procedure truly upholds judicial independence. Let's explore this question in the light
of the Supreme Court Advocate-on-Record Association v. Union of India (1994) case:

Background of the Case: In this case, the Supreme Court examined the issue of
judicial appointments and the role of the executive in the appointment process. The
court considered whether the "collegium system," which gave a dominant role to the
judiciary in the appointment of judges, was in line with the Constitution.

Arguments and Decision:

 The petitioners argued that the existing appointment process allowed excessive
influence of the executive over the judiciary, compromising its independence.
They called for transparency and a more objective mechanism for
appointments.
 The court, in its judgment, upheld the collegium system and emphasized the
importance of judicial primacy in the appointment of judges. It held that
consultation with the executive was necessary, but the final decision-making
power rested with the judiciary.

Debate on Judicial Independence: The Supreme Court Advocate-on-Record

Association case sparked a debate on whether the current appointment procedure
truly ensures the independence of the judiciary. Some arguments in favor of judicial
independence include:
 1. Primacy of Judiciary: The decision affirmed the judiciary's authority and the
principle of judicial independence, giving the judiciary the final say in the
appointment process.
2. Protection against Executive Influence: The collegium system aims to limit
the influence of the executive branch in judicial appointments, reducing the
potential for political interference.

However, there are also arguments against the existing system:

1. Lack of Transparency: Critics argue that the collegium system lacks

transparency and accountability, as the decision-making process is not open to
public scrutiny.
2. Lack of Diverse Perspectives: The current procedure has been criticized for
not including broader perspectives and inputs from different stakeholders,
which some argue may hinder a more comprehensive and inclusive selection
process.
3. Need for Checks and Balances: Critics argue that a more balanced approach,
involving a role for both the judiciary and the executive, would ensure a better
system of checks and balances.

The procedure of appointment of Judges of the Supreme Court and High Courts
under the Constitution of India (CI) is an essential aspect that ensures the
independence of the judiciary. However, it has been a subject of debate and litigation
over the years. The case of SC Advocate on Record Association vs. Union of India
(1994) sheds light on this matter.

Independence of Judiciary:

The independence of the judiciary is a crucial principle that ensures the judiciary
functions impartially and without influence from the executive or legislative branches
of government. An independent judiciary is essential to uphold the rule of law,
protect fundamental rights, and provide fair and unbiased justice to the citizens.

Appointment of Judges under the CI:

The Constitution of India provides for the appointment of Judges of the Supreme
Court and High Courts through a consultative process involving the Chief Justice of
India (CJI) and other senior Judges. For Supreme Court appointments, the CJI is
typically consulted by the President in consultation with other senior Judges.
Similarly, for High Court appointments, the CJI and the Chief Justice of the
respective High Court, along with other Judges, are consulted. The recommendations
are then sent to the President for formal appointment.

SC Advocate on Record Association vs. Union of India (1994) Case:

In this case, the Supreme Court examined the issue of judicial appointments and the
involvement of the executive in the process. The Court held that the "primacy" of the
CJI's opinion is a significant aspect of maintaining the independence of the judiciary.
It stated that the consultation process must be meaningful and the CJI's
recommendation must be given the highest importance while making appointments.

Justification on Independence of Judiciary:

1. CJI's Opinion: The "primacy" of the CJI's opinion in judicial appointments

ensures that the head of the judiciary plays a pivotal role in selecting suitable
candidates. This empowers the judiciary to have a say in its own appointments
and guards against undue executive influence.
2. Consultative Process: The consultative process involving the CJI and other
senior Judges ensures collective decision-making, which helps maintain the
independence of the judiciary from any particular individual or authority.
3. Avoiding Executive Domination: By ensuring that the executive does not
have unbridled power in judicial appointments, the Constitution seeks to
protect the judiciary's independence from the influence of the executive
branch.

However, it is essential to note that the appointment process has faced criticisms for
its lack of transparency and delay in certain instances, leading to concerns about
potential executive interference.

Conclusion:

The procedure of appointment of Judges of the Supreme Court and High Courts
under the Constitution of India aims to ensure the independence of the judiciary by
involving the CJI and other senior Judges in a consultative process. The SC Advocate
on Record Association vs. Union of India (1994) case reinforced the significance of the
CJI's opinion in the appointment process. While the procedure has certain
safeguards, continuous efforts are needed to strengthen the independence of the
judiciary and enhance transparency in the appointment process.

While the Supreme Court Advocate-on-Record Association case upheld the collegium
system and reaffirmed the importance of judicial primacy in appointments, the
debate on the procedure's effectiveness in ensuring judicial independence continues.
The question of whether the current procedure strikes the right balance between
judicial independence and accountability remains a subject of ongoing discussion
and potential reform.

ETC.
1 Concept of Justice in Preamble 1
2 Judicial Power of President of India 1